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WdUr  Bachrmch 


UNPOPULAR   GOVERNMENT 
IN  THE  UNITED  STATES 


THE  UNIVERSITY  OF  CHICAGO  PRESS 
CHICAGO,  ILLINOIS 


Agrnta 
THE  CAMBRIDGE  UNIVERSITY  PRESS 

LONDON  AND  EDINBURGH 

THE  MARUZEN-KABUSHIKI-KAISHA 

TOKYO,  OSAKA,  KYOTO 

KARL  W.  HIERSEMANN 

LEIPZIG 

THE  BAKER  &  TAYLOR  COMPANY 

NEW  YOEK 


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Unpopular  Government 
in  the  United  States 


ALBERT  M.  KALES 

Professor  of  Laiv  in  Nortkiuestern  Uni'versity 


THE  UNIVERSITY  OF  CHICAGO  PRESS 
CHICAGO,  ILLINOIS 


Copyright  igi4  By 
The  University  op  Chicago 


All  Rights  Reserved 


Published  February  1914 


Composed  and  Printed  By 

The  University  of  Chicago  Press 

Chicago,  Illinois,  U.S.A. 


TABLE  OF  CONTENTS 


PAGE 

Introduction       . i 

PART  I 

The  Rise  of  the  Politocrats 
CHAPTER  I 

Unpopular  Government — Defined — How  For- 
merly IMaintained — Precautions  Taken  to 
Avoid    It 7 

CHAPTER  II 

Unpopular  Government — How  Established  in 
THE  United  States  in  Spite  of  the  Precautions 
TO  Prevent  It 21 

Sec.  I.  Introductory 21 

Sec.  2.  The  Burden  upon  the  Electorate — The 
Inverted  Pyramid  of  Governmental  and 
Electoral  Districts — The  Offices  to  Be 
Filled  and  the  Number  of  Electors  in 
Each  District 26 

Sec.  3.  The  Resulting  Political  Ignorance  of  the 
Voter  and  His  Consequent  Disfranchise- 
ment   39 

Sec.  4.  The  Power  of  the  Electorate  Passes  to 
Those  Who  Take  Advantage  of  Its 
Ignorance  to  Direct  It  How  to  Vote     .       48 

V 


Table  of  Contents 


PAGE 

Sec.  5.  The  Power  of  Government  Passes  into  the 
Hands  of  Those  Who  Are  Able  to  Direct 
the  Majority  of  the  Politically  Ignorant 
How  to  Vote.  They  Constitute  an 
Extra-legal  but  None  the  Less  Real 
Government 61 

Sec.  6.  The  Extra-legal  Government  Uses  Its 
Power  Selfishly  to  Maintain  Itself  and  to 
Benefit  Those  Who  Have  Organized  and 
Supported  It 67 

Sec.  7.  The  Extra-legal  Government  Is  Able  to 
Maintain  Itself  in  the  Face  of  Popular 
Disapproval        73 

PART  II 

The  War  on  Politocracy 

CHAPTER  III 

Dissipation    of   Political   Ignorance   by   Self- 
taught  Political  Education 91 

CHAPTER  IV 
The  Australian  Ballot  and  Civil-Service  Acts      95 

CHAPTER  V 

Altruistic  Efforts  to  Enlighten  the  Voter    .      99 

CHAPTER  VI 

Abolition  of  the  Party  Circle  and  Party  Column    104 

CHAPTER  VII 
The  Primaries 107 


Table  of  Contents 
CHAPTER  VIII 

PAGE 

The  Initiative  and  the  Referendum.       .     ,     .     nS 

CHAPTER  IX 
The  Recall 122 

CHAPTER  X 

Independent  Movements  and  the  New  Party    .     128 

CHAPTER  XI 

The  Security  of  Extra-legal  Unpopular  Govern- 
ment BY  PoLITOCRATS  IN  THE  UNITED  StATES      .       133 

CHAPTER  XII 

The  Menace  to  Unpopular  Government  of  the 
Commission  Form  of  Government  for  Smaller 
Cities 139 

CHAPTER  XIII 

The  Principles  of  the  Commission  Form  op  Gov- 
ernment Applied  to  the  Larger  Cities      .     .     162 

CHAPTER  XIV 

The  Principles  of  the  Commission  Form  of  Gov- 
ernment Applied  to  the  State 166 

CHAPTER  XV 

Contemporary  Plans  Looking  toward  the  Union 
OF  the  Executive  and  Legislative  Powers  of 
State  Governments 181 

CHAPTER  XVI 

The  Second-Chamber  Problem ig3 

vii 


Table  of  Contents 


CHAPTER  XVII 

PAGE 

Methods  of  Selecting  and  Retiring  Judges      .     225 

CHAPTER  XVIII 

Changes  in  the  Plan  of  the  Federal  Government    252 

CHAPTER  XIX 
Conclusion 262 


INTRODUCTION 

The  plan  for  state  and  municipal  govern- 
ments generally  accepted  in  the  United  States 
in  the  middle  period  of  the  nineteenth  centiu-y 
gave  great  satisfaction  in  the  provincial  and 
frontier  communities  where  it  was  adopted  and 
which  then  composed  the  principal  part  of  the 
United  States.  In  many  nooks  and  corners  of 
the  country  today  we  have  reHcs  of  this  pro- 
vincial and  frontier  society.  In  such  districts 
this  plan  for  state  and  municipal  governments 
is  entirely  satisfactory  in  practice.  To  depart 
from  it  would  be  unwise,  for  the  reason  that 
in  matters  of  government  that  which  is  and 
which  is  not  positively  objectionable  should 
be  let  alone.  Frequently  men  of  talent  and 
power,  whose  youth  was  spent  in  the  provin- 
cial and  frontier  era  of  our  social  and  poHtical 
development,  still  find  conditions  about  them 
not  so  much  changed.  To  them  the  mid- 
nineteenth-century  plan  and  its  practice  are  en- 
tirely satisfactory.     Any  criticism  of  it  would 


Unpopular  Government  in  the  United  States 

at  once  meet  with  a  vigorous  and,  no  doubt, 
from  the  point  of  view  of  provincial  and  fron- 
tier conditions,  a  complete  defense.  To  the 
inhabitants  of  those  parts  of  the  United  States 
where  such  provincial  and  frontier  conditions 
still  exist  the  following  essay  is  not  addressed. 
So  long  as  the  more  simple  and  primitive 
conditions  of  society  which  obtained  in  the  first 
half  of  the  nineteenth  century  were  all  but 
universal  in  the  United  States,  any  criticism 
of  the  plan  of  state  and  municipal  government 
which  prevailed  was  a  purely  academic  exercise. 
Even  when,  in  some  districts,  conditions  had 
changed  and  great  cities  had  arisen  with  enor- 
mous wealth  and  population,  to  which  the  mid- 
nineteenth-century  plan  of  government  did  not 
seem  to  fit  in  practice,  the  majority  were  still 
so  far  satisfied  as  to  make  any  criticism  of  that 
plan  of  merely  speculative  value.  But  in  the 
second  decade  of  the  twentieth  century  the 
provincial  and  frontier  type  of  society  will  be 
found  to  embrace  a  distinct  minority  of  the 
population  of  the  country.  The  social  condi- 
tions presented  by  a  large  population  in  a  small 


Introduction 


area,  with  a  highly  organized  and  differentiated 
social  structure,  have  become  common  to  a 
large  portion  of  the  population  of  the  entire 
country.  Whether  the  application  of  a  mid- 
nineteenth-century  plan  of  government  to  these 
conditions  is  satisfactory  is,  therefore,  no  longer 
an  academic  or  speculative  question.  Its  due 
consideration  has  perhaps  rather  become  to  the 
last  degree  vital  to  the  life  of  the  nation.  To 
those  who  are  face  to  face  with,  this  problem 
the  following  essay  is  addressed. 


PART  I 
THE  RISE  OF  THE  POLITOCRATS 


CHAPTER  I 

UNPOPULAR  GOVERNMENT— DEFINED— 
HOW  FORMERLY  MAINTAINED— PRE- 
CAUTIONS   TAKEN    TO    AVOID     IT 

Unpopular  government  is,  and  indeed  always 
has  been,  a  government  of  the  few,  by  the  few, 
and  for  the  few,  at  the  expense  and  against  the 
wish  of  the  many. 

In  a  former  era  unpopular  government  was 
achieved  and  maintained  with  simple  direct- 
ness. All  governmental  power  was,  by  a 
monarchical  or  oligarchical  plan,  openly  placed 
in  the  hands  of  the  few.  Human  characteristics 
insured  the  selfish  use  of  that  power.  The 
maintenance  of  such  selfish  use  of  governmental 
power  against  the  wish  of  the  majority  was 
accompHshed  by  denying  any  legal  opportunity 
to  the  majority  to  express  itself,  and  by  the 
perpetuation  of  power  in  the  hands  of  the  few 
by  inheritance  or  appointment. 

The  makers  of  our  mid-nineteenth-century 
state  and  municipal  governments  undertook  to 

7 


Unpopular  Government  in  the  United  States 

free  this  land  from  unpopular  government.  If 
all  governments  must  be  tyrannical  from  the 
point  of  view  of  some,  they  preferred  the  tyranny 
of  the  majority  to  the  tyranny  of  the  minority. 
Their  aim  was  to  establish  and  maintain  a 
government  "of  the  people,  by  the  people,  and 
for  the  people,"  as  distinguished  from  a  govern- 
ment of  the  few,  by  the  few,  and  for  the  few, 
at  the  expense  of  the  many  and  against  their 
wish.  They  could  not,  however,  change  human 
characteristics.  The  tendency,  therefore,  to 
use  power  selfishly  continued.  They  did  en- 
deavor to  prevent  the  concentration  of  power 
in  the  hands  of  the  few  by  splitting  the  power 
of  government  up  among  many  separate  and 
distinct  offices  and  limiting  the  power  which 
any  one  officeholder  might  exercise.  They 
sought  to  make  impossible  the  retention  of 
power  in  the  face  of  popular  disapproval  by 
requiring  all  offices  of  importance  in  the  govern- 
ment to  be  filled  by  popular  election  and  the 
elections  to  be  held  frequently.  For  the  greater 
part  of  a  century  these  ways  and  means  of 
heading  off  unpopular  government  have  been 


Unpopular  Government — Defined 

constantly  employed  in  the  development  of 
our  state  and  municipal  governments.  The 
beHef  of  the  people  in  popular  government  has 
become  a  belief  in  these  two  means  of  obtain- 
ing it.  In  popular  estimation  the  means  have 
become  the  end.  Inevitably  these  expedients 
for  securing  immunity  from  unpopular  govern- 
ment have  been  pressed  to  great  extremes. 

The  application  of  the  principle  that  govern- 
mental power  must  be  kept  out  of  the  hands 
of  the  few  is  responsible  for  that  fundamental 
characteristic  of  American  constitutions  known 
as  the  separation  of  powers  among  the  three 
departments  of  government.  The  entire  power 
of  the  government  is  exercised  by  the  executive, 
the  legislative,  and  the  judicial  departments. 
None  is  allowed  to  perform  any  of  the  functions 
which  belong  to  either  of  the  others.  If  it 
does  so,  its  action  is  unconstitutional  and  void. 
Each  department  is,  therefore,  supreme  and 
independent  in  its  own  field.  This  is  the  be- 
ginning of  decentralization.  In  the  distribu- 
tion of  powers,  each  department  is  designed  to 
be  a  check  upon  the  others.    The  legislature, 

9 


Unpopular  Government  in  the  United  States 

being  the  most  powerful  by  reason  of  its  con- 
trol over  the  making  of  the  laws  and  appro- 
priations, is  naturally  a  substantial  check  upon 
the  executive  and  judicial  departments.  Our 
constitution-makers  have,  therefore,  been  par- 
ticular to  devise  checks  upon  the  legislature  by 
the  other  two  departments.  The  executive  is 
given  a  wide  veto  power  upon  all  legislation, 
although  the  veto  may  be  overridden  by  a 
two-thirds  vote  of  the  legislature.  The  courts 
in  their  power  to  declare  laws  unconstitutional 
are  given,  potentially  at  least,  an  effective  veto 
power  upon  legislation.  The  scope  of  it  is 
narrower  than  the  executive  veto,  but  on  the 
other  hand  the  veto  of  the  courts  cannot  be 
overridden  by  any  action  of  the  legislature. 
The  actual  operation  of  these  checks  and  bal- 
ances, coupled  with  the  complete  separation  of 
powers,  has  resulted  in  irritation  and  bicker- 
ing between  the  departments.  The  trouble 
between  the  executive  and  the  legislative 
departments  especially  is  frequent  and  acute. 
The  executive  is  the  most  conspicuous  single 
official.    He  is   elected   upon   a  platform   of 


Unpopular  Government — Defined 

pledges  for  legislation.  He  seeks  to  redeem 
those  pledges  by  promoting  the  introduction 
of  bills  and  pushing  them  through  the  legisla- 
ture. The  legislature  feels  hostile  toward  the 
executive  for  attempting  to  coerce  its  action. 
The  executive  loses  patience  with  the  legisla- 
ture for  not  redeeming  the  pledges  of  the  ex- 
ecutive to  the  electorate.  The  legislature  is 
frequently  hostile  toward  the  Supreme  Court 
for  declaring  laws  unconstitutional.  The  execu- 
tive also  comes  in  conflict  with  the  judiciary 
by  reason  of  the  fact  that  the  latter  upsets 
legislation  which  the  executive  has  sometimes 
been  able  to  secure  only  by  trading  for  votes 
important  appointments  which  cannot  be  re- 
called. The  executive  and  legislative  depart- 
ments are  likely  to  feel  that  the  Supreme  Court 
has  gone  beyond  its  judicial  power  in  declaring 
laws  unconstitutional.  The  result  is  that  each 
of  the  departments  of  government  fails  to  work 
in  harmony  with  the  others.  Each  tends  to  re- 
tire to  its  own  constitutional  sphere  and  there 
spend  considerable  time  in  doing  what  it 
pleases,  regardless  of  the  other  departments, 


Unpopular  Government  in  the  United  States 

and  from  time  to  time  blocking  and  hampering 
them.  In  this  way  the  least  progress  is  made 
with  the  important  business  of  legislation  and 
the  functioning  of  the  executive  and  the  judicial 
departments. 

Our  constitution-makers,  however,  went  even 
farther  in  preventing  the  concentration  of  the 
powers  of  government.  They  split  up  and  dis- 
sipated the  powers  of  each  department  among 
as  many  different  oflSces  as  possible.  They 
spUt  up  the  legislative  power  between  two 
chambers,  each  operating  as  a  check  upon  the 
other.  In  Illinois  they  went  a  step  farther 
and  spUt  up  the  power  of  the  lower  house  by 
providing  a  method  whereby  every  third  mem- 
ber might  be  the  representative  of  a  minority 
party.  A  general  check  upon  the  power  of 
the  legislature  is  frequently  found  in  the  pro- 
vision that  it  can  meet  for  general  legislative 
business  only  every  two  years,  or  that  it  can 
remain  in  session  for  such  general  legislative 
purposes  only  a  specified  number  of  days. 
The  result  is  that  the  legislative  power  is  not 
only  hampered  from  without  by  executive  and 


Unpopular  Government — Defined 

judicial  vetoes  and  the  limited  time  in  which 
to  act,  but  it  is  divided  within  among  bodies 
which  are  more  or  less  antagonistic  to  each 
other.  The  executive  power  of  the  state,  if 
lodged  wholly  in  the  governor,  acting  through 
his  appointees,  might  still  have  been  a  very 
extensive  power,  but  it  would  have  been  too 
much  power  in  one  man  to  meet  the  approval  of 
our  constitution-makers.  Hence  the  executive 
power  has  been  spUt  up  among  several  inde- 
pendently elected  executive  officers,  viz.,  the 
governor,  the  attorney-general,  the  secretary 
of  state,  the  state  treasurer,  the  state  auditor, 
the  state  superintendent  of  public  instruction, 
and  the  trustees  of  the  state  university.  Each 
one  of  these  ofi&cers  is  independent  in  the  dis- 
charge of  his  statutory  or  constitutional  duties. 
So  far  as  they  divide  executive  power  among 
them,  they  take  power  from  the  chief  execu- 
tive. In  the  judicial  department  we  find  the 
same  pains  to  give  out  the  minimum  amount 
of  power  to  any  single  judge  or  group  of  judges. 
We  find  usually  several  courts  of  original  juris- 
diction, each  with  power  to  handle  Hmited  and 

13 


Unpopular  Government  in  the  United  States 

defined  classes  of  cases.  There  are  justices  of 
the  peace,  municipal  courts,  probate  courts, 
juvenile  courts,  criminal  courts,  and  circuit 
courts,  the  last  having  the  most  general  juris- 
diction. Then  follow  a  succession  of  appellate 
tribunals,  each  with  a  Hmited  jurisdiction  to 
hear  appeals.  The  trial  judges  have  had  their 
power  restricted  by  being  forbidden  to  exercise 
any  control  over  juries  by  oral  instructions 
upon  the  law.  They  have  no  power  to  give 
any  instructions  upon  the  evidence.  They  have 
been  reduced  in  jury  trials  to  the  position  of 
umpires  for  forensic  duels  between  lawyers.  In 
the  appellate  tribunals  they  are  usually  forbid- 
den to  review  questions  of  fact.  Their  function 
is  confined  very  narrowly  to  the  aflfirming  of 
the  decision  below,  or  reversing  it  without  re- 
manding it,  or  reversing  and  remanding  it  for 
a  new  hearing.  They  are  denied  any  power  of 
hearing  further  evidence  or  making  a  proper 
order  so  as  to  settle  the  litigation  if  possible  in 
the  appellate  tribunal.  The  work  of  appellate 
courts  consists  to  so  large  an  extent  of  opinion 
wTiting  and  closet  work  that  the  office  is  incon- 

14 


Unpopular  Government — Defined 

spicuous  and  not  very  attractive.  In  most 
states  the  judges  are  elected.  Each  one  is 
independent  in  the  exercise  of  the  duties  of  his 
statutory  jurisdiction.  Even  the  clerks  of  the 
various  separate  courts  are  in  many  instances 
elected.  They  are  absolutely  independent  of 
the  judiciary  or  of  any  other  officer  of  the  legal 
government  in  the  exercise  of  their  statutory 
duties.  There  is  no  administrative  head  of 
the  court  with  large  powers  over  the  direction 
of  the  work  of  other  judges  and  the  clerical 
force  and  a  corresponding  responsibihty  for  the 
conduct  of  judicial  business.  In  the  everyday 
work  of  his  ofhce  the  judge,  under  the  present 
plan  of  government,  is  amenable  to  no  authority 
except  his  own  conscience  and  a  fear  of  unfavor- 
able public  comment  upon  his  actions. 

In  our  municipal  governments  the  legisla- 
tive power  is  usually  exercised  by  a  single 
chamber,  though  there  are  instances  of  double 
chambers  in  the  city  council.  In  the  less  im- 
portant municipal  governments,  such  as  coun- 
ties, villages,  and  special  commissions,  we 
frequently  find  a  part  of  the  executive  power 

IS 


Unpopular  Government  in  the  United  States 

vested  in  the  municipal  legislative  body  or  in 
some  member  of  it.  Thus,  in  county  govern- 
ments we  frequently  find  the  chief  executive 
the  presiding  and  most  influential  member  of 
the  board  of  commissioners.  In  the  cities, 
however,  there  is  usually  a  complete  separation 
of  the  legislative  and  executive  functions,  the 
legislative  power  being  committed  to  a  council 
and  the  executive  functions  to  a  mayor  and 
other  subordinate  officers.  There  is  a  general 
tendency  toward  the  splitting-up  of  the  execu- 
tive power  among  different  executive  officers 
who  are  elected  and  are  independent  of  any 
superior  authority  in  the  performance  of  their 
statutory  duties.  A  city  government  will 
usually  distribute  the  executive  power  among 
a  mayor,  a  treasurer,  a  comptroller,  and  a 
clerk.  The  executive  power  of  a  county  gov- 
ernment will  be  split  up  among  a  president  of 
the  county  board,  a  county  clerk,  a  sheriff,  a 
county  treasurer,  a  county  superintendent  of 
schools,  members  of  the  board  of  assessors,  and 
the  board  of  review.  A  great  deal  of  unob- 
served spHtting-up  of  executive  and  legislative 

i6 


Unpopular  Government — Defined 

functions  in  municipal  governments  has  been 
accomplished  by  the  creating  of  several  munici- 
pal corporations  with  special  functions  operat- 
ing in  the  same  territory.  For  instance,  where 
a  city  and  county  government  cover  the  same 
territory  we  have  two  municipal  legislatures 
operating  in  the  same  territory,  and  also  two 
sets  of  executive  officers.  Thus  is  the  legisla- 
tive and  executive  power  necessary  for  a  given 
district  split  in  half.  If  a  drainage  district,  a 
park  district,  a  school  district,  a  public  Hbrary 
district,  each  controlled  by  commissioners  or 
trustees  with  executive  and  legislative  power, 
be  added,  all  operating  in  the  same  territory 
with  a  city  government  and  a  county  govern- 
ment, we  have  still  further  split  up  the  mu- 
nicipal executive  and  legislative  power.  Such 
situations  are  common  enough. 

The  principle  of  decentralization  has  even 
been  applied  so  as  to  prevent  the  assistance  to 
the  government  which  might  be  derived  from 
experts  in  various  Hnes.  The  place  where  the 
largest  number  and  variety  of  experts  in  the 
most  departments  of  learning  can  be  found  is 

17 


Unpopular  Government  in  the  United  States 

the  largest  city  of  the  state.  If  that  city 
happens  to  be  one  of  the  great  cities  of  the 
country  and  of  the  world,  it  will  also  be  an 
important  center  of  intellectual  activity  of 
all  sorts.  It  will  very  likely  have  in  or  near 
it  one  or  more  great  universities.  Yet  in  such 
states  we  are  likely  to  find  that  an  ancient  fear 
of  mob  influence  over  legislation  has  placed 
the  state  capital  at  some  distant  geographical 
center  which  is  not  even  a  transportation  center. 
Not  infrequently  the  state  university  wiU  be 
found  at  some  point  more  or  less  inaccessible 
to  both  the  largest  city  of  the  state  and  the 
capital.  These  are  arrangements  which  tend 
directly  to  the  separation  of  the  government 
from  the  aid  of  expert  knowledge  and  the  best 
intelligence  of  the  state.' 

Members  of  the  state  and  municipal  legis- 
latures are,  of  course,  elective.  Moreover,  the 
judges  and  state,  county,  and  city  administra- 
tive officers  are  also  elective.  In  addition  to 
preventing  any  officer  from  holding  his  place 

'  Compare  Godkin,  Essays  on  Problems  of  Modern  Democracy, 
pp.  305-6. 

18 


Unpopular  Government — Defined 

and  his  power  against  the  will  of  the  majority, 
the  wide  application  of  the  elective  principle 
aids  in  the  decentrahzation  of  the  executive 
power.  It  tends  to  make  every  elective  officer 
independent  of  every  other  officer  in  the  dis- 
charge of  his  statutory  duties.  By  subjecting 
to  an  election  at  a  given  time  a  part  only  of 
the  total  number  of  officers  elected,  a  further 
check  upon  the  concentration  of  power  is  se- 
cured. The  officers  who  do  not  come  up  for 
election  at  a  particular  time  may  be  of  a 
different  poHtical  faith  from  those  who  are 
elected.  In  the  same  administration,  there- 
fore, some  officeholders  may  stand  as  a  check 
upon  the  actions  of  the  others.  In  obedience 
to  the  principle  of  frequent  elections  all  officers 
hold  for  brief  terms  of  one,  two,  four,  or  six 
years — usually  for  two  or  four  years. 

Those  who  devised  this  plan  of  government 
for  use  in  the  United  States  no  doubt  thought 
that  the  citadel  of  popular  government  as  thus 
guarded  was  absolutely  impregnable.  How 
could  the  power  of  government  fall  into  the 
hands  of  the  few  when  it  had  been  so  carefully 

19 


Unpopular  Government  in  the  United  States 

split  up  among  so  many  who  could  not  possibly 
work  together  in  harmony?  How  could  the 
power  of  government  be  retained  in  the  face  of 
popular  disapproval  when  those  who  exercised 
it  were  subject  to  such  frequent  elections? 
Nevertheless,  the  impossible  has  again  hap- 
pened. The  impregnable  citadel  has  been 
taken.  The  manner  of  its  assault  and  capture 
is  even  now  one  of  the  unexpected  and,  to  many 
who  appreciate  only  in  a  general  way  what  has 
occurred,  one  of  the  incomprehensible  events 
of  history. 


CHAPTER  II 

UNPOPULAR  GOVERNMENT— HOW  ESTAB- 
LISHED IN  THE  UNITED  STATES  IN  SPITE 
OF  THE  PRECAUTIONS  TO  PREVENT  IT 

Section  i 
Introductory 
In  brief  outline  this  is  what  has  occurred: 
As  the  population  of  the  country  has  grown  and 
communities  and  states  have  passed  more  and 
more  beyond  the  frontier  stage  of  development, 
the  decentralization  of  governmental  power  has 
constantly  increased  and  the  elective  principle 
has  been  more  and  more  extensively  applied. 
As  a  consequence  the  burden  placed  upon  the 
electorate  has  become  more  and  more  onerous. 
The  voter  has  been  called  upon  to  vote  more 
often  and  for  an  increasing  number  of  officers. 
He  must  theoretically  examine  into  the  qualifi- 
cations of  a  large  number  of  candidates  at 
frequent  intervals.  This  has  placed  upon  intel- 
ligent voting  an  enormous  educational  qualifica- 
tion.   The  task  of  the  voter  to  obtain  sufficient 


Unpopular  Government  in  the  United  States 

information  about  candidates  long  ago  passed 
beyond  what  even  the  very  intelligent  citizen 
could  fulfil  and  still  maintain  his  place  in  com- 
petitive industry.  The  result  is  that  the  voter, 
though  extremely  intelligent  in  general,  comes 
to  the  polls  in  utter  ignorance  of  candidates 
and  their  qualifications  for  office.  Neverthe- 
less, he  insists,  in  spite  of  his  political  igno- 
rance, upon  voting  for  someone.  He  takes  his 
voting  seriously  and  endeavors  to  make  a  show 
of  voting  intelligently.  This  attitude  necessarily 
requires  him  to  secure  advice  from  someone  as 
to  whom  to  vote  for.  At  once  there  is  created 
the  opportunity  for  the  adviser  to  the  voter. 
He  first  appears  naturally  as  a  local  leader 
whom  the  electorate  trusts.  Soon,  however, 
there  arises  the  man  who  makes  advising  the 
politically  ignorant  voter  his  profession.  Then 
this  professional  adviser  becomes  more  of  a 
director  to  the  politically  ignorant  voter.  This 
process  goes  on  in  every  electoral  district  where 
the  voter  is  politically  ignorant  enough  to  need 
some  advice.  It  is  not  long  before  there  is 
developed  a  hierarchy  of  professional  advisers 


Unpopular  Government — How  Established 

and  directors  to  the  politically  ignorant  voter. 
Sometimes  there  are  competing  hierarchies  of 
such  advisers  and  directors.  One  or  the  other, 
however,  is  the  more  generally  successful,  or 
both  by  agreement  divide  the  privilege  of  ad- 
vising the  politically  ignorant  voter  how  to 
vote — each  helping  the  other  in  its  exclusive 
territory.  Those  who  direct  the  politically 
ignorant  majority  how  to  vote  have  filled  the 
state  and  municipal  offices  with  those  who  are 
loyal  to  them  first  and  to  the  governed  after- 
ward. The  leaders  of  the  successful  organiza- 
tion of  advisers  and  directors  to  the  politically 
ignorant  electorate  have  become  an  extra-legal 
but  none  the  less  real  government.  A  decen- 
tralized legal  government  has  been  replaced  by 
a  centrahzed  extra-legal  government.  Thus 
the  power  of  government  has  again  drifted  into 
the  hands  of  the  few.  These,  pursuant  to  well- 
known  human  characteristics,  use  that  power 
selfishly.  The  decentrahzed  character  of  the 
legal  governmental  power,  the  fact  that  only 
part  of  the  offices  are  filled  at  any  time,  and 

the  enormous  advantage  which   comes  from 

23 


Unpopular  Government  in  the  United  States 

having  a  standing  army  of  advisers  and 
directors  to  guide  the  mass  of  politically 
ignorant  voters,  make  it  difficult  to  replace 
at  the  polls  with  real  representatives  of  the 
electorate  the  appointees  of  this  extra-legal 
government.  We  have,  therefore,  come  finally 
to  a  well-defined  extra-legal  but  none  the  less 
real  government  of  the  few,  by  the  few,  and 
for  the  few,  at  the  expense  and  against  the 
wish  of  the  many.  We  have,  in  a  word, 
achieved  the  estabhshment  of  a  substantial 
unpopular  government. 

In  form  the  pohtically  ignorant  voter  is 
aided  by  the  altruistic  advice  of  those  who  know 
who  should  be  elected.  In  form  the  voter  can 
take  the  advice  or  not  as  he  pleases.  In  reality, 
however,  and  in  actual  practice,  the  power  of 
the  electorate  to  fill  the  state  and  municipal 
ofiices  has  been  confided  by  the  politically  igno- 
rant majority  to  the  leaders  in  the  successful 
hierarchy  of  professional  advisers  and  directors 
to  the  politically  ignorant  voter.  The  elector, 
by  being  required  to  vote  too  much,  has  been 
compelled  to  surrender  to  a  large  extent  his 

24 


Unpopular  Government — How  Established 

right  to  vote  at  all,  and  to  permit  others  to 
cast  his  ballot  as  they  see  fit.  Formerly  people 
were  disfranchised  when  they  were  given  no 
opportunity  to  vote.  Today  they  are  dis- 
franchised by  being  required  to  vote  too 
much.  Formerly  the  legal  rulers  of  the  dis- 
franchised masses  were  selected  for  them  by 
the  few  without  equivocation.  Today  our 
legal  rulers  are  selected  for  us  by  the  few 
through  the  subterfuge  of  the  masses  casting 
their  ballots  according  to  the  directions  of  the 
few.  In  other  forms  of  unpopular  government 
the  central  figure  has  been  the  monarch,  the 
autocrat,  the  oHgarch,  or  the  aristocrat.  In 
ours  it  is  the  poHtocrat.  We  have  avoided 
monarchy,  autocracy,  oligarchy,  and  aristoc- 
racy, only  to  find  ourselves  tightly  in  the 
grasp  of  a  poUtocracy. 

So  startling  a  conclusion  with  respect  to  our 
governmental  condition  invites  a  detailed  con- 
sideration of  each  step  upon  which  that  con- 
clusion is  founded. 


as 


Unpopular  Government  in  the  United  States 

Section  2 

The  Burden  upon  the  Electorate — The  Inverted  Pyramid 
of  Governmental  and  Electoral  Districts — The  Offices 
to  Be  FUled  and  the  Number  of  Electors  in  Each 
District 

No  doubt  the  average  American  voter  in 
most  districts  will  readily  concede  the  great 
burden  of  his  political  duties.  But  unless  he 
has  analyzed  his  particular  situation  he  will 
hardly  realize  how  great  is  that  burden.  Of 
course,  the  condition  of  voters  in  different 
places  will  differ  in  detail,  but  the  important 
features  are  much  the  same  everywhere.  For 
the  sake  of  example  I  will  analyze  my  own 
situation  as  a  voter  of  the  Village  of  Winnetka, 
Township  of  New  Trier,  County  of  Cook,  and 
State  of  Illinois.^ 

I  am  one  of  about  600  voters  in  a  village 
which  elects  each  spring,  on  one  day,  about 
one-haK  of  the  following  officers:  a  president, 
6  trustees,  a  clerk,  a  treasurer,  a  marshal  and 
collector,  2  police  magistrates,  and  6  library 
trustees;  and  on  another  day,  shortly  after- 
ward, a  common-school  trustee. 

'  See  frontispiece. 

26 


Unpopular  Government — How  Established 

I  am  one  of  about  2,000  voters  in  a  town- 
ship which  elects,  on  the  same  day  that  the 
principal  village  officers  are  elected,  but  at  a 
different  polling  place,  about  one-half  of  the 
following  officers:  a  supervisor,  a  clerk,  an 
assessor,  a  collector,  a  commissioner  of  high- 
ways, 5  justices  of  the  peace,  5  constables,  and 
a  poundmaster;  and  at  a  later  day  (but  on 
the  same  day  that  the  trustee  for  common 
schools  is  elected),  2  high-school  trustees. 

I  am  one  of  about  18,000  voters  to  elect  one 
member  of  the  state  Senate  every  four  years 
and  3  members  of  the  House  of  Representa- 
tives of  the  state  legislature  every  two  years 
at  the  regular  November  election. 

I  am  one  of  about  28,000  voters  who  elect 
5  county  commissioners  at  the  regular  Novem- 
ber election  every  other  year. 

I  am  one  of  about  42,000  voters  who  elect 
one  member  of  Congress  at  the  regular  Novem- 
ber election  and  one  member  of  the  State 
Board  of  Equalization  every  two  years. 

I  am  one  of  about  322,000  voters  who  elect 

3   sanitary  trustees  every  two  years  at  the 

27 


Unpopular  Government  in  the  United  States 

regular  November  election  and  a  president  of 
the  Sanitary  District  every  five  years. 

I  am  one  of  about  350,000  voters  who  elect 
the  following  county  ofiicers  every  other  year 
at  the  November  election:  2  of  the  5  members 
of  the  Board  of  Assessors,  i  of  the  3  members 
of  the  Board  of  Review,  6  of  the  18  judges  of 
the  Superior  Court  of  Cook  County;  also  about 
one-haK  of  the  following  officers:  president  of 
the  Board  of  County  Commissioners,  judge  of 
the  Probate  Court,  judge  of  the  County  Court, 
state's  attorney,  recorder  of  deeds,  clerk  of  the 
Circuit  Court,  clerk  of  the  Superior  Court, 
clerk  of  the  Criminal  Court,  clerk  of  the 
Appellate  Court,  clerk  of  the  Probate  Court, 
coroner,  sheriff,  county  clerk,  county  super- 
intendent of  schools,  and  coimty  surveyor. 
I  am  one  of  about  350,000  voters  to  elect, 
every  other  June  at  a  special  election,  about  5 
of  the  15  judges  of  the  Circuit  Court  of  Cook 
County. 

I  am  one  of  about  380,000  voters  to  elect  i 
of  the  7  justices  of  the  Supreme  Court  of  the 
state  every  nine  years. 

2S 


NovBmber  5,  1912 


1  SOCIIUST 


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OSKIHUST  UBOB    ,      ,   

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•BTHUi '  L  rSeB        IHEobili'  BOoivEfT 

"  'mm  'mm'      hiSh  i.'  Joisoii 


Unpopular  Government — How  Established 

I  am  one  of  about  1,100,000  to  elect  at  the 
regular  November  election  every  two  years 
about  one-half  of  the  followmg  state  officers: 
a  governor,  a  lieutenant-governor,  a  secretary 
of  state,  an  auditor,  a  treasurer,  a  state  superin- 
tendent of  public  instruction,  6  trustees  of  the 
state  university,  clerk  of  the  state  Supreme 
Court,  and  2  congressmen  at  large. 

I  am  one  of  about  15,000,000  voters  who 
elect  a  president  and  vice-president  of  the 
United  States  every  four  years  at  the  regular 
November  election. 

When  I  entered  the  voting  booth  at  the 
regular  November  election  in  191 2,  the  ballot 
given  me  to  mark  was  22X28  inches  in  size. 
It  called  upon  the  voter  to  do  his  part  in  filling, 
exclusive  of  presidential  electors,  34  offices. 
It  presented  for  his  consideration,  exclusive 
of  presidential  electors,  181  names  from  which 
to  make  selections  :* 

'  The  ballot  which  the  voter  in  Chicago  faced  at  the  same  elec- 
tion was  even  larger.  It  was  19X31  inches  and  presented 
elections  to  53  ofl&ces,  exclusive  of  the  presidential  electors,  and 
267  names,  exclusive  of  the  presidential  electors,  to  be  voted  upon. 
At  the  fall  election  in  Cook  County  in  igio  the  ballot  was  17X20 
inches.  It  presented  52  offices  to  be  filled  and  190  candidates  for 
the  voter  to  investigate. 

29 


Unpopular  Government  in  the  United  States 

An  enumeration  of  the  offices  to  be  filled 
by  election  merely  emphasizes  the  number  of 
candidates  whom  the  voter  should  inform 
himself  about.  The  extent  of  the  burden  upon 
the  voter  is  not  fully  appreciated  until  it  is 
perceived  how  difficult  actual  conditions  make 
it  for  him  to  obtain  information  regarding  can- 
didates for  office.  The  least  important  and 
most  inconspicuous  state  and  local  offices,  as 
well  as  the  most  important  and  conspicuous, 
must  engage  the  attention  of  the  electorate  of 
the  entire  governmental  district.  But  the  can- 
didates for  inconspicuous  and  unimportant 
offices  must  usually  be  men  who  are  incon- 
spicuous or  unimportant  in  the  community. 
Furthermore,  the  importance  and  conspicuous- 
ness  of  subordinate  offices  do  not  increase  in 
proportion  to  the  increase  of  population.  The 
clerk  of  a  court  or  a  county  surveyor  is  not  a 
more  conspicuous  officer  because  he  holds  his 
office  in  a  county  having  over  two  million  in- 
habitants. He  is,  therefore,  proportionately  less 
conspicuous  and  important  as  the  population 
increases.     The  voter  is,  therefore,  constantly 

30 


Unpopular  Government — How  Established 

presented  with  candidates  whose  reputations 
are  in  inverse  ratio  to  the  size  and  population 
of  the  electoral  district.  The  more  electors 
there  are  in  the  district  the  smaller  in  propor- 
tion is  the  reputation  of  the  candidate.  The 
more  the  character  and  quahfications  of  the 
candidates  are  hidden,  the  more  difficult  it  is 
for  the  voter  to  obtain  the  information  which 
he  should  have  in  order  to  vote  intelligently. 
For  instance,  the  600  voters  in  the  village  where 
the  writer  resides  are  called  upon  to  select  a 
clerk,  a  treasmrer,  a  marshal  and  collector,  2  po- 
lice magistrates,  and  library  and  school  trustees. 
In  so  small  a  community  the  voter  may  with 
some  effort  actually  know  who  the  candidates 
for  these  places  are.  As  a  matter  of  fact,  how- 
ever, that  effort  is  considerably  more  than  the 
large  majority  of  voters  will  push  themselves 
to  perform.  The  2,000  voters  in  the  township 
where  the  writer  resides  are  called  upon  to 
elect  a  supervisor,  a  clerk,  an  assessor,  a  col- 
lector, a  commissioner  of  highways,  5  justices 
of  the  peace,  4  constables,  a  poundmaster,  and 
high-school  trustees.     These  offices  are  not  in- 

31 


Unpopular  Government  in  the  United  States 

trinsically  more  conspicuous  or  more  important 
than  the  village  offices  just  enumerated.  Hence 
the  enlargement  from  600  to  2,000  voters  causes 
the  candidates  for  office  to  be  proportionately 
less  conspicuous  in  the  community.  To  the 
same  extent  the  difficulty  to  the  voter  of  ob- 
taining information  as  to  the  character  and 
attainments  of  the  candidates  has  been  in- 
creased. The  members  of  the  state  Senate  and 
House  of  Representatives  are  important  officers 
because  they  exercise  the  legislative  power  of 
the  state.  The  conspicuousness  and  impor- 
tance of  each  of  these  offices  is,  however,  weak- 
ened by  the  existence  of  the  other,  for  between 
the  representatives  and  senators  the  legislative 
power  is  divided  and  each  is  a  check  upon  the 
other.  The  members  of  the  House  of  Repre- 
sentatives in  the  state  legislature  are  hidden  to 
some  extent  from  the  voters  because  3  are 
elected  at  large  from  a  senatorial  district  con- 
taining 18,000  voters.  It  is  more  difficult  for 
the  voter  to  find  out  about  a  legislator  when  he 
is  one  of  18,000  than  when  he  is  one  of  6,000 
voters.    Twenty-eight  thousand  electors  of  the 

32 


Unpopular  Government — How  Established 

County  of  Cook  outside  of  the  city  of  Chicago 
are  called  upon  to  vote  for  5  of  the  15  county 
commissioners.  The  office  is  not  likely  to  be 
held  by  men  whom  it  is  easy  for  the  average 
voter  of  the  district  to  pick  up  direct  informa- 
tion about.  To  elect  one  member  of  the  state 
Board  of  Equalization  42,000  voters  are  called 
upon.  Again,  the  size  of  the  electorate  makes 
it  difficult  to  know  who  the  candidates  for  the 
place  may  be.  Three  hundred  and  twenty-two 
thousand  voters  are  called  upon  to  elect  7 
sanitary  trustees.  Here  the  darkness  of  the 
average  voter  becomes  Egyptian,  and  he  is 
practically  excluded  from  any  means  of  a 
personal  knowledge  of  who  the  candidates  for 
the  sanitary  trustees  are.  The  same  is  equally 
true  of  the  members  of  the  Board  of  Review, 
members  of  the  Board  of  Assessors,  the  30 
judges  of  Cook  County,  the  president  of  the 
Board  of  County  Commissioners,  the  judge 
of  the  Probate  Court,  the  judge  of  the  County 
Court,  the  state's  attorney,  the  recorder,  the 
5  clerks  of  the  different  courts,  the  sheriff,  the 
county   clerk,   the   county   superintendent   of 

33 


Unpopular  Government  in  the  United  States 

public  instruction,  and  the  county  surveyor. 
There  are  350,000  voters  who  regularly  cast 
their  ballots  for  these  officers.  Among  a  pop- 
ulation containing  so  many  voters  it  is  prac- 
tically impossible,  even  for  the  voter  who 
makes  an  unusual  effort,  to  acquire  any  per- 
sonal knowledge  of  who  the  candidates  for  these 
offices  are.  Take  the  most  prominent  officials 
in  the  Hst — the  judges  and  state's  attorney. 
The  intelligent  man  who  is  a  voter  has  very 
little  chance  to  acquire  any  personal  knowledge 
of  the  fitness  of  the  candidates  for  these  offices. 
A  particular  judge  or  a  particular  candidate 
for  state's  attorney  may  become  to  some  extent 
known  to  the  voter  and  have  the  confidence 
of  the  voter.  But  these  are  exceptional  cases. 
The  average  candidate  for  these  offices  is  be- 
yond the  reach  of  any  thoroughgoing  knowledge 
on  the  part  of  the  voter.  The  difficulty  of 
obtaining  information  about  one  inconspicu- 
ous member  of  so  large  a  population  is  too 
great.  In  Illinois,  to  select  a  secretary  of  state, 
an  auditor,  a  treasurer,  a  state  superintendent 
of  schools,  6  trustees  of  the  state  university,  a 

34 


Unpopular  Government — How  Established 

clerk  of  the  state  Supreme  Court,  and  2  con- 
gressmen at  large,  1,100,000  voters  are  called 
upon.  Here  again  the  inconspicuousness  of 
the  offices  compared  with  the  size  of  the 
electorate  is  such  that  the  obstacle  to  the  voter 
informing  himself  about  candidates  is  practi- 
cally insuperable. 

One  would  think  that  the  voter  had  diffi- 
culty enough  in  finding  out  about  candidates 
as  a  result  of  the  simple  process  of  requiring 
comparatively  inconspicuous  and  unimportant 
offices  to  be  filled  by  a  very  niunerous  electo- 
rate. But  his  difficulty  has  been  enormously 
increased  by  the  process  of  requiring  the  voter 
to  do  the  larger  part  of  his  investigating  for 
the  purpose  of  voting  at  a  single  election.  For 
instance,  the  writer  is  called  upon  at  a  single 
election  in  November  to  investigate  the  quaH- 
fications  for  office  of  a  president  and  vice- 
president  of  the  United  States,  a  congressman 
for  his  district,  2  congressmen  at  large,  about 
one-half  of  the  state  officers,  and  about  one- 
half  of  the  county  officers.  To  be  exact,  he 
must  look  up  candidates  for  34  different  offices 

35 


Unpopular  Government  in  the  United  States 

(not  including  the  presidential  electors)  pre- 
sented upon  the  long  ballot  given  supra 
(opposite  p.  29),  to  the  number  of  181.  As- 
suming that  information  about  some  of  the 
candidates  for  the  more  important  offices,  such 
as  members  of  Congress  and  members  of  the 
state  legislature,  could  be  looked  up  and  reUable 
information  obtained,  the  chances  are  that  this 
will  not  be  done  because  other  more  important 
offices,  like  that  of  president  of  the  United 
States  and  governor  of  the  state,  are  to  be  filled. 
This  process  of  preventing  the  voter  from  in- 
vestigating candidates  for  even  important  and 
conspicuous  offices  by  putting  so  much  investi- 
gating upon  him  at  a  single  election  that  he 
cannot  do  it  has  operated  to  produce  pohtical 
ignorance  on  the  part  of  the  electorate  as  to 
candidates  for  Congress  and  the  state  legisla- 
ture. These  are  important  and  conspicuous 
offices.  The  candidates  come  from  compara- 
tively small  districts.  If  selected  at  an  election 
where  they  were  the  only  offices  to  be  filled,  a 
very  considerable  amount  of  intelligence  might 
be   displayed   by   the   electorate.    But   these 

36 


Unpopular  Government — How  Established 

offices  are  hidden  among  half  a  hundred  other 
offices  for  which  several  hundred  other  candi- 
dates are  running.  In  the  mass  the  voter  is 
distracted  and  fails  to  a  considerable  extent  to 
distinguish  the  important  from  the  unimpor- 
tant. The  extraordinary  amount  of  investigat- 
ing to  be  done  overwhelms  and  discourages 
him,  and  he  goes  to  the  polls  too  frequently 
utterly  ignorant  of  the  qualifications  of  candi- 
dates for  members  of  Congress  and  the  state 
legislature. 

That  the  decentralization  of  governmental 
power  and  the  increased  application  of  the 
elective  principle  has  necessarily  cast  upon  the 
electorate  an  enormous  burden  in  order  that  it 
may  vote  intelligently  is  clear  enough  from  the 
everyday  experience  of  the  voter  at  the  polls. 
At  least  one  political  scientist  has  directed 
an  experiment  to  emphasize  it.  President 
Judson,  a  few  years  ago,  gave  to  a  graduate 
class  at  the  University  of  Chicago,  four  weeks 
before  the  regular  fall  election  in  Cook  County, 
a  list  of  all  the  candidates  for  office  on  a  ballot 
substantially   similar   to   that   which   appears 

37 


Unpopular  Government  in  the  United  States 

supra  (p.  29),  and  required  them  to  report  at 
the  time  of  the  election  such  facts  as  they  could 
ascertain  about  the  candidates  and  their  quali- 
fications. With  diligent  work  on  the  part  of 
the  really  mature  men  in  Dr.  Judson's  class  a 
satisfactory  report  was  turned  in  with  regard 
to  only  a  small  percentage  of  the  entire  list. 
This,  Dr.  Judson  thought,  fairly  indicated 
what  the  average  voter  could  do  on  his  own 
responsibility  in  the  way  of  securing  informa- 
tion respecting  candidates  if  he  had  spent  the 
same  amount  of  time  with  that  object  in  view. 
Not  only  is  it  obvious  that  the  voter  is  under 
a  great  burden  with  respect  to  seeking  and 
securing  information  about  the  candidates  for 
ofl&ce  he  is  called  upon  to  vote  for,  but  it  is 
clear  that  the  task  is  so  great  as  to  be  impossible 
of  fulfilment  by  the  large  mass  of  the  electorate 
who  have  their  place  in  competitive  industry 
to  maintain.  A  small  handful  of  intelligent 
men  of  commanding  position  in  the  community, 
after  many  years  of  experience,  may  be  able 
with  comparatively  Uttle  expenditure  of  time 
to  inform  themselves  accurately  concerning  a 

38 


Unpopular  Government — How  Established 

large  number  of  the  candidates  of  the  two  or 
three  principal  parties  on  the  ballot.  But  the 
average  man  whose  position  in  the  community 
and  experience  with  affairs  is  more  Hmited 
could  not  obtain  the  proper  amount  of  infor- 
mation without  an  actual  neglect  of  his  busi- 
ness or  profession — a  neglect  which  he  dare  not 
permit.  The  voter  who  occupies  a  salaried 
position  which  demands  a  full  day  of  work  for 
his  employer  throughout  the  year  has  no  time, 
inclination,  nor  opportunity  for  prolonged  in- 
vestigation into  the  qualifications  of  candidates 
for  pubHc  office.  The  residuary  mass  of  the 
electorate  have  neither  the  time,  the  experi- 
ence, nor  the  interest  to  investigate  in  advance 
and  inform  themselves  of  the  qualifications  of 
candidates  to  be  presented  for  a  large  number 
of  offices. 

Section  3 

The  Resulting  Political  Ignorance  of  the  Voter  and  His 
Consequent  Disfranchisement 

Of  course,  there  is  some  political  ignorance 
due  to  illiteracy  and  general  lack  of  intelligence. 
With  this,  however,  we  are  not  now  principally 

39 


Unpopular  Government  in  the  United  States 

concerned.  It  is  here  assumed  that  except  in 
small  and  exceptional  districts  the  great  ma- 
jority of  voters  are  neither  illiterate  nor  unin- 
telligent, but  are  of  a  fair  average  inteUigence 
and  capable  of  reaching  and  following  sound 
moral  and  political  judgments.  The  fact  which 
is  now  to  be  emphasized  is  that  the  burden 
upon  the  voter  is  such  that  the  vote  of  the  most 
intelligent  man  is  made  quite  as  politically 
ignorant  as  that  of  the  least  intelligent.  The 
percentage  of  politically  ignorant  voting  has 
become  very  high,  not  because  the  voter  is 
unintelligent,  but  in  spite  of  the  fact  that  he 
may  be  extremely  intelligent.  An  electorate 
that  is  capable  of  casting  an  85  per  cent 
intelligent  vote  on  a  given  matter  of  im- 
portance has,  by  the  simple  process  of 
requiring  the  voter  to  vote  too  much,  been 
reduced  to  the  voting  effectiveness  of  a  FiH- 
pino  who  is  not  yet  ready  for  popular  insti- 
tutions. To  the  extent  that  our  intelligent 
voter  has  thus  artificially  been  made  ignorant 
in  the    discharge    of    his    pohtical   duties   he 

has  been  disfranchised.    Too  much  of  what 

40 


Unpopular  Government — How  Established 

popularly  passes  for  democracy  has  resulted 
in  too  little  real  democracy. 

When  the  voter  faces  in  the  voting  booth 
such  a  ballot  as  that  already  exhibited  supra 
(opposite  p.  29),  or  even  a  much  simpler  one, 
he  has  no  time  to  analyze  his  condition  of 
knowledge  or  ignorance.  He  must  vote  quickly 
and  be  about  his  business.  If  we  could  secure  a 
revelation  from  the  voter  of  the  state  of  his 
mind  as  he  faces  the  ballot,  would  not  his 
condition  of  ignorance  be  appalling?  He 
would,  of  course,  admit  that  he  knew  nothing 
of  the  duties  of  a  large  number  of  the  offices 
to  be  filled.  He  would  admit  that  he  knew 
nothing  of  the  qualifications  of  a  large  number 
of  the  men  who  were  seeking  office.  Indeed, 
many  of  them  he  would  never  have  heard  of. 
The  average  voter  would  no  doubt  have  pre- 
pared himself,  by  reading,  by  following  events, 
and  by  discussing  the  matter  with  other  voters, 
to  vote  for  a  particular  candidate  for  president 
of  the  United  States.  From  the  same  sources 
he  might  acquire  a  personal  preference  among 
the  candidates  for  governor  of  the  state.  He 
41 


Unpopular  Government  in  the  United  States 

might  have  a  personal  preference  founded 
upon  some  actual  knowledge  or  current  rumor 
as  to  the  proper  candidate  for  congressman  or 
member  of  the  state  legislature  or  president  of 
the  county  board.  He  might  be  satisfied  that 
some  one  of  the  several  candidates  running  for 
several  vacancies  on  the  bench  ought  to  be 
elected.  It  is  hardly  probable,  however,  that 
he  will  have  any  personal  preference  founded 
upon  any  actual  knowledge  as  to  the  candidates 
for  all  these  places  at  once.  Outside  the  can- 
didates for  three  or  four  places  he  will  be  utterly 
and  entirely  devoid  of  any  personal  knowledge 
upon  which  to  base  an  intelligent  vote. 

To  make  this  position  more  concrete  I  will 
describe  my  own  state  of  mind  as  to  the 
ballot  illustrated  supra  (facing  p.  29).  I  never 
heard  the  names  of  any  of  the  candidates  on 
the  Socialist  Labor,  the  SociaHst,  or  Prohibi- 
tion tickets  except  those  of  Debs  and  Chafin, 
and  of  these  I  had  an  impression  about  the 
qualifications  for  office  only  with  respect  to 
Mr.  Debs.     On  the  Democratic  ticket  I  think 

I  was  intelligent  with  respect  to  Mr.  Wilson's 

42 


Unpopular  Government — How  Established 

candidacy  for  president  and  Mr.  Dunne's  for 
governor.  I  had  some  personal  knowledge 
regarding  one  candidate  for  a  trustee  of  the 
state  university,  the  candidates  for  state's 
attorney  and  for  president  of  the  Board  of 
County  Commissioners.  The  other  names  on 
the  Democratic  ticket  meant  nothing  to  me. 
On  the  Repubhcan  ticket  I  regarded  myself 
as  informed  sufficiently  to  vote  intelligently  on 
Mr.  Taft's  candidacy  for  president,  and  Mr. 
Deneen's  for  governor.  I  had  some  personal 
knowledge  regarding  one  candidate  for  repre- 
sentative at  large  in  Congress,  the  candidates 
for  representative  in  Congress  from  the  con- 
gressional district,  and  for  president  of  the 
Board  of  County  Commissioners.  Of  the  re- 
maining thirty-nine  names  on  the  Repubhcan 
ticket  I  recognized  one  as  that  of  the  son  of 
a  war  governor,  one  as  a  former  attorney- 
general,  one  as  a  former  county  judge,  three 
seeking  clerkships  and  the  office  of  coroner, 
as  the  incumbents  of  the  offices  for  which 
they  were  running,  and  one  as  a  lawyer  with 
whom  I  had  some  personal  acquaintance.    The 

43 


Unpopular  Government  in  the  United  States 

names  of  the  other  candidates  at  the  time 
I  voted  meant  absolutely  nothing  to  me.  On 
the  Progressive  ticket  I  was  intelligent  with 
respect  to  Mr.  Roosevelt's  candidacy  for  presi- 
dent and  Mr.  Johnson's  for  vice-president;  also 
to  the  candidacy  of  those  seeking  the  offices  of 
attorney-general  and  representative  to  the  state 
legislature.  I  had  some  acquaintance  with 
one  of  the  candidates  for  trustee  of  the  Univer- 
sity of  Illinois,  and  one  of  the  five  candidates 
for  county  commissioner.  The  rest  of  the 
names  meant  nothing  whatever  to  me. 

If  the  offices  which  the  voter  was  called 
upon  to  fill  while  poHticaUy  ignorant  were  few 
in  number  and  altogether  insignificant  in  the 
extent  of  the  governmental  power  which  they 
controlled,  not  much  harm  would  be  done.  But 
little  by  Httle,  as  population  has  increased  and 
social  and  governmental  organization  has  be- 
come more  complex  and  the  political  duties  of 
the  voter  have  grown  heavier,  the  poUtical 
ignorance  of  the  voter  has  extended  to  a  con- 
stantly increasing  number  of  candidates  for 
office,  until  the  sum  total  of  the  governmental 

44 


Unpopular  Government — How  Established 

power  of  all  the  offices  for  which  the  voter  casts 
his  ballot  in  poHtical  ignorance  constitutes  the 
principal  part  of  the  entire  local  and  state  gov- 
ernmental power.  The  great  sources  of  govern- 
mental power  are  the  Congress  of  the  United 
States,  the  legislatures  of  the  state  and  local 
governments.  When  the  tide  of  pohtical  igno- 
rance on  the  part  of  the  intelligent  voter  rises 
so  high  that  it  embraces  the  candidates  for  the 
local,  state,  and  federal  legislative  bodies,  the 
situation  is  serious.  When  it  includes  the  local 
judiciary  and  all  but  the  president  of  the  United 
States,  the  highest  executive  officer  of  the  state 
and  of  the  principal  local  government,  the  sit- 
uation has  become  desperate. 

So  far  as  the  electorate  is  too  ignorant  to 
vote  inteUigently  it  has  been  in  efifect  dis- 
franchised. It  does  not  really  vote  at  all.  If 
the  voter  were  required  to  vote  bhndfolded, 
or  if  the  ballot  were  made  up  in  cipher,  he 
would  know  that  he  was  disfranchised.  Sup- 
pose, however,  that  the  voter  is  blindfolded 
or  the  ballot  done  in  cipher  only  in  those 
instances  where  the  voter  is  called  upon  to 

45 


Unpopular  Government  in  the  United  States 

vote  without  any  political  information  neces- 
sary to  enable  him  to  vote  intelligently.  Would 
he  be  any  worse  off  because  of  the  cipher  or  the 
bandage  on  his  eyes?  Does  not  the  political 
ignorance  of  the  voter  as  clearly  deprive  him 
of  his  power  to  vote  as  the  use  of  a  cipher  or 
blindfolding?  In  both  cases  he  goes  through 
the  mechanical  act  of  voting,  but  he  records 
nothing  at  all  by  so  doing. 

The  ignorance  of  the  voter  and  his  conse- 
quent disfranchisement  follow  necessarily  from 
our  present  plan  of  government.  They  result 
immediately  from  the  burdens  placed  upon  the 
electorate.  Those  in  turn  arise  from  the 
application  of  the  two  principles  of  govern- 
ment which  we  have  constantly  heretofore 
applauded  and  proclaimed — the  decentraHza- 
tion  of  governmental  power  and  the  principle 
that  all  offices  of  any  consequence  should  be 
elective.  These  principles  of  government  are 
still  regarded  by  the  mass  of  the  people  as  the 
true  and  only  sources  of  democracy  and  the 
necessary  protection  of  the  people  from  aU  forms 

of   unpopular    government.     The    appHcation 

46 


Unpopular  Government — How  Established 

of  these  principles  is  in  varying  degrees  pro- 
tected by  state  constitutions  which  provide 
for  the  separation  of  the  powers  of  govern- 
ment, both  state  and  local,  among  departments 
and  officers,  and  require  local  as  well  as  state 
subordinate  officers  to  be  elected  at  frequent 
intervals/  Thus  do  the  letter  and  the  spirit  of 
our  governmental  theory  and  practice  neces- 
sarily induce  the  wholesale  ignorance  and  con- 
sequent disfranchisement  of  the  large  majority 
of  the  electorate  in  regard  to  candidates  for 
offices,  which,  when  filled,  wdeld  a  very  large, 

'In  Illinois,  for  instance,  the  following  state  and  local  ofl&ces  are 
provided  for  in  the  state  constitution,  protected  by  the  state  con- 
stitution, and  required  by  the  constitution  to  be  filled  by  election: 
governor,  lieutenant-governor,  secretary  of  state,  auditor  of  public 
accounts,  state  treasurer,  superintendent  of  public  instruction, 
attorney-general,  judge  of  the  Supreme  Court,  clerk  of  the 
Supreme  Court;  in  counties  outside  of  Cook  County:  the  county 
judge,  state's  attorney,  sheriff,  county  clerk,  treasurer,  recorder, 
coroner,  clerk  of  the  Circuit  Court,  county  superintendent  of 
schools,  judge  of  the  Probate  Court,  judge  of  the  Circuit  Court; 
in  Cook  County:  15  county  commissioners,  judge  of  the  County 
Court,  14  judges  of  the  Circuit  Court,  18  judges  of  the  Superior 
Court,  state's  attorney,  recorder,  coroner,  sheriff,  county  treas- 
urer, county  clerk,  clerk  of  the  Circuit  Court,  clerk  of  the  Superior 
Court,  and  county  superintendent  of  schools.  This  includes  all 
the  state  and  local  offices  named  in  the  long  ballot  printed 
opposite  p.  29,  except  3  trustees  for  the  state  university,  3  repre- 
sentatives in  Congress,  i  member  of  the  State  Board  of  Equali- 
zation, 2  members  of  the  Board  of  Assessors,  i  member  of  the 
Board  of  Review,  the  county  surveyor,  and  3  trustees  of  the 
Sanitary  District. 

47 


Unpopular  Government  in  the  United  States 

if  not  the  larger,  part  of  the  state  and  local 
governmental  power. 

Formerly  unpopular  government  was  founded 
upon  the  absence  of  any  voting.  Today  the 
electorate,  while  voting  furiously,  has  never- 
theless been  deprived  to  a  large  extent  of  the 
ballot  because  a  burden  of  knowledge — an 
educational  qualification,  in  effect — has  been 
placed  upon  it  which,  under  present  conditions, 
it  does  not  and  cannot  fulfil.  Thus,  by  the 
simple  process  of  too  much  so-called  popular 
democracy — that  is,  too  much  decentrahza- 
tion  of  governmental  power  and  too  much 
voting — we  have  arrived  at  the  essential  con- 
dition which  invites  the  estabhshment  of 
unpopular  government — namely,  the  disfran- 
chisement of  the  electorate. 

Section  4 

The  Power  of  the  Electorate  Passes  to  Those  Who  Take 
Advantage  of  Its  Political  Ignorance  to  Direct  It  How 
to  Vote 

The  severe  educational  qualification  which 
has  been  imposed  upon  the  electorate  today 
has  done  more  than  merely  deprive  the  voter 

48 


Unpopular  Government — How  Established 

of  the  power  to  vote.  It  has  presented  to 
others  the  opportunity  to  direct  the  voter  how 
to  vote  and  thus  in  effect  to  cast  his  ballot  for 
him.  That  opportunity  has  at  once  been  taken 
advantage  of  by  men  who  have  been  quick  to 
perceive  the  vast  political  power  which  the 
privilege  of  casting  the  voter's  ballot  for  him 
confers.  This  combination  of  opportunity  and 
selfish  motive  is  the  complete  cause  of  the  pass- 
ing of  a  considerable  part  of  the  political  power 
of  the  electorate  at  large  to  the  few  who  direct 
it  how  to  vote.  It  is  important  that  the  way  in 
which  the  effect  follows  from  the  causal  con- 
ditions be  set  forth  in  as  detailed  and  precise 
a  manner  as  possible. 

The  voting  for  a  large  number  of  the  most 
important  offices  in  the  state  and  municipal 
government  is  done  during  a  few  hours  on 
election  day.  In  these  few  hours  great  masses 
of  voters  come  face  to  face  with  such  a  ballot 
as  appears  opposite  p.  29.  They  have  no 
opinion  as  to  any  of  the  candidates  except  a 
very  few,  for  the  most  part  at  the  head  of  the 
ticket.    They   do   not,    however,    because   of 

49 


Unpopular  Government  in  the  United  States 

their  ignorance  refrain  from  voting.  Neither 
do  they  pitch  a  coin  to  decide  for  whom  they 
shall  vote.  They  insist  on  voting,  and  they 
take  their  voting  seriously.  It  follows  that 
when  they  are  politically  ignorant  they  vote  the 
way  they  are  told  to  vote  by  somebody.  The 
important  questions  are:  Who  tells  them  how 
to  vote?  and  By  what  means  are  they  told? 
The  small  minority,  including  many  of  the 
most  intelligent,  vote  the  way  they  are  directed 
by  some  newspaper.  At  one  time  a  prominent 
newspaper  in  Chicago  was  credited  with  the 
abihty  to  direct  about  one-tenth  of  the  voters 
in  a  county  or  city  election  how  to  cast  their 
ballots.  But  this  was  possible  only  when  the 
newspaper  concentrated  its  entire  influence  on 
the  filhng  of  one  or  two  offices.  The  news- 
paper gives  very  little  advice  to  the  voter  with 
respect  to  the  filling  of  a  considerable  majority 
of  ofiices  for  which  elections  are  held.  Even  as 
to  the  few  offices  with  regard  to  the  candidates 
for  which  the  newspaper  makes  a  great  effort 
to  advise  voters,  its  influence  is  limited.  A 
large  proportion   of   the   electorate   vote   the 

so 


Unpopular  Government — How  Established 

party  circle.  Some  are  moved  by  sentiment 
or  strong  prejudices;  others  by  the  fact  that 
men  of  whom  they  know  something  personally 
are  responsible  for  the  nominations  or  appear 
as  candidates  in  a  prominent  place  on  a  par- 
ticular ticket.  In  every  case  a  vote  in  the 
party  circle,  which  is  a  blanket  vote  for  a  great 
number  of  party  candidates  of  whom  the  voter 
has  no  knowledge,  is  a  vote  according  to  the 
direction  of  those  who  promoted  or  directed 
the  nomination  of  the  men  who  appear  as 
candidates  in  that  party  column.  It  is  be- 
lieved, however,  that  a  very  large  body  of 
voters — especially  in  districts  where  large  num- 
bers are  generally  ignorant  or  iUiterate — need, 
and  indeed  must  have,  advice  as  to  how  to 
vote  from  some  individual  whom  they  either 
look  up  to  and  trust,  or  fear.  These  voters  do 
not  ask  for  political  leadership.  They  do  not 
desire  information  upon  which  to  found  poHtical 
opinions.  All  they  ask  for  is  advice  as  to  how 
to  mark  their  ballots.  In  congested  centers  of 
population  this  advice  is  sought  within  a  few 
hours  in  a  single  day  by  tens  and  even  hundreds 

5J 


Unpopular  Government  in  the  United  States 

of  thousands  of  voters.  The  voter  wants  infor- 
mation as  he  approaches  the  booth.  Even 
those  who  allow  a  newspaper  to  direct  them  how 
to  vote  need  advice  in  voting  for  offices  which 
the  newspaper  ignores.  So  the  practice  of  in- 
dependent voting  and  splitting  tickets  causes 
the  voter  to  seek  advice  from  those  who  make 
it  their  business  to  know  something  about  the 
candidates.  If  these  masses  do  not  obtain  in- 
struction and  advice  as  to  whom  to  vote  for 
they  must  refrain  from  voting,  or  pitch  a  coin, 
or  fall  back  upon  the  party  circle.  They  do 
the  last  as  the  most  rational,  and  thus  take  the 
directions  of  those  who  are  able  to  place  the 
names  of  candidates  under  the  party  circle. 
In  brief,  the  entire  situation  is  something  like 
this:  As  to  four-fifths  of  the  candidates  for 
office  the  voters  are  poHtically  ignorant;  yet 
they  insist  upon  voting  and  in  taking  seriously 
their  duty  as  a  citizen  to  vote.  They  will  not 
pitch  a  coin.  Hence  they  must  vote  the  way 
they  are  told.  Nine- tenths  of  the  voters  who 
cast  ballots  for  four-fifths  of  the  offices  are 
directed  to  vote  by  those  who  have  placed  the 

52 


Unpopular  Government — How  Established 

names  upon  the  ballot  or  by  someone  who 
makes  a  special  appeal  to  the  voter  at  the 
polls  or  by  a  special  canvass  before  election. 
Not  only,  however,  does  the  pohtical  igno- 
rance of  the  voter  present  an  obvious  opportu- 
nity to  someone  to  direct  him  how  to  vote  and 
thus  cast  his  ballot  for  him,  but  an  overwhelm- 
ing self-interest  on  the  part  of  individuals  in- 
vokes at  once  the  strongest  motive  to  use  the 
opportunity.  The  man  that  can  control  the 
power  of  the  electorate  will  secure  the  power  to 
appoint  to  of&ce.  He  who  can  regularly  place 
the  candidate  in  office  wiU  soon  control  the 
holder  of  the  office  and  exercise  the  govern- 
mental power  which  the  officeholder  wields. 
The  securing  of  such  governmental  power  has 
always  been  an  object  in  itself  to  a  proportion 
of  the  individuals  in  every  community.  When 
seen  as  a  source  of  personal  profit  and  advance- 
ment, the  numbers  who  will  strive  for  it  and 
the  efforts  which  they  wiU  make  are  greatly 
increased.  Indeed,  the  prize  which  the  success- 
ful secure  is  such  as  to  produce  the  keenest 
competition  and  the  most  exhaustive  effort. 

S3 


Unpopular  Government  in  the  United  States 

It  is  important  to  notice  that  the  necessities 
of  candidates  quickly  reveal  the  extent  of  the 
poHtical  ignorance  of  the  voter  and  the  oppor- 
tunity which  this  affords  for  someone  to  direct 
him  how  to  vote.  The  candidate,  of  whom 
the  vast  majority  of  voters  are  poHtically 
ignorant  because  his  ofhce  is  obscure  and 
inconspicuous,  finds  that  his  election  is  not 
a  matter  of  his  policies  and  efficiency,  but  of 
the  efforts  of  workers  at  the  polls  and  the 
canvassing  of  voters  before  election.  Such 
a  candidate  needs  the  support  of  successful 
advisers  to  the  politically  ignorant  voter.  He 
needs  the  support  of  that  man  or  combination 
of  men  in  the  community  that  can  cast  the 
largest  number  of  votes  of  the  politically 
ignorant.  A  little  experience  in  fulfiUing  this 
apparently  innocent  and  legitimate  demand  for 
a  campaign  manager  will  reveal  to  the  manager 
the  character  of  the  voter's  political  ignorance 
and  the  fact  that  someone  must  always  direct 
him  how  to  vote,  and  that  this  is  the  means 
by  which  pohtical  power  is  to  be  secured.  A 
slight  actual  experience  is  all  that  is  necessary 

54 


Unpopular  Government — How  Established 

to  point  the  real  path  to  the  exercise  by  the 
few  of  governmental  power. 

Such  conditions  of  opportunity  revealed  and 
ever-present  selfish  motives  must  inevitably 
produce  men  who  aspire  to  be  successful  ad- 
visers to  the  electorate.  Active  competition 
for  these  places  naturally  ensues.  Success, 
then,  means  the  survival  of  the  fittest.  That 
means  that  among  the  professionals  those  win 
who  take  their  profession  seriously,  under- 
stand it  thoroughly,  and  practice  it  assiduously 
and  with  judgment,  tact,  and  craft.  Here, 
then,  we  have  the  local  political  boss  or  pro- 
fessional politician.  He  is  merely  the  success- 
ful local  adviser  and  director  to  the  politically 
ignorant  voter.  He  is  the  man  who  can,  more 
than  anyone  else,  in  a  local  district,  direct  the 
largest  number  of  the  politically  ignorant  how 
to  vote.  He  advises  and  directs  the  voter 
how  to  vote  principally  by  personal  canvasses 
of  the  voters  and  solicitations  at  the  polls  and 
by  controlling  the  machinery  of  nominations 
so  as  to  determine  who  shaU  appear  as  a  candi- 
date under  a  given  party  name.    The  political 

ss 


Unpopular  Government  in  the  United  States 

ignorance  of  the  voter  is  one  of  the  necessary 
conditions  to  his  existence.  The  fact  that  most 
voters  cannot  make  a  show  of  voting  intelli- 
gently without  someone  to  help  them  provides 
the  opportunity  which  calls  him  into  being. 
The  power  of  the  successful  adviser  and  director 
to  the  voter  is  in  direct  ratio  to  the  political 
ignorance  of  the  electorate.  It  makes  no  dif- 
ference whether  that  ignorance  be  the  result  of 
general  lack  of  intelligence  or  be  artificially  pro- 
duced by  placing  a  special  educational  quali- 
fication upon  the  voter  which  he  cannot  or 
will  not  fulfil.  To  the  extent  that  the  adviser 
and  director  of  the  politically  ignorant  voter 
can  direct  and  advise  the  voter  how  to  vote, 
he  can  fill  the  offices  of  the  state  and  local 
governments  with  those  who  are  loyal  to  him, 
and  thus  control  some  part  of  the  power  of 
government. 

Since  the  business  of  directing  the  politically 
ignorant  voter  how  to  vote  has  fallen  into 
the  hands  of  a  professional  class  and  since  the 
prize  to  be  won  is  the  control  of  governmental 
power,  it  is  not  to  be  wondered  at  that  the 

56 


Unpopular  Government — How  Established 

profession  has  become  highly  organized  for  the 
purpose  of  achieving  its  object;  that  men  of 
extraordinary  power  and  ability  have  arisen 
as  its  leaders,  and  that  to  a  very  great 
extent  the  object  of  the  organization  has  been 
achieved. 

The  political  boss  or  adviser  to  the  politically 
ignorant  voter  first  appears  in  the  smaller 
election  districts.  His  advent  is  coincident 
with  a  certain  degree  of  political  ignorance  on 
the  part  of  the  electorate.  At  first  that  ig- 
norance was  the  result  of  the  actual  illiteracy 
which  appeared  in  the  majority  of  the  voters 
of  a  particular  district,  usually  in  a  large  city. 
Thus  we  first  hear  of  the  ward  boss  in  our 
larger  cities.  His  ward  usually  contains  a 
large  foreign  population  Hving  in  the  densest 
political  ignorance,  easily  terrified,  easily  ca- 
joled, and  easily  corrupted.  The  steady  in- 
crease in  the  length  of  ballots  and  the  burden 
placed  upon  the  electorate  soon,  however, 
began  to  produce  artificially  a  state  of  political 
ignorance  on  the  part  of  the  most  intelligent 
electorate.     This  at  once  produced  the  politi- 

S7 


Unpopular  Government  in  the  United  States 

cal  boss  for  districts  where  the  electorate  was 
possessed  of  a  high  average  of  character  and 
intelligence.  This  boss  was  of  a  different  type 
from  a  river-ward  boss.  It  took  longer  to 
make  him.  He  was  of  a  somewhat  finer  grain. 
He  had  some  inkling  of  the  fact  that  he  really 
bore  a  fiduciary  relation  to  the  pohtically 
ignorant  electorate  whom  he  advised  and  di- 
rected and  whose  vote  he  cast.  He  had  to 
possess  himself  of  the  confidence  and  the  trust 
of  his  constituents.  His  success  was  obtained 
only  by  close  attention  to  his  profession  and  by 
qualities  of  tact  and  leadership.  His  suprem- 
acy was  retained  only  by  care  and  subtlety. 
The  moment  each  one  of  any  considerable 
number  of  local  election  districts  developed 
such  a  professional  political  boss  it  was  in- 
evitable that  they  should  begin  to  act  together 
to  direct  and  advise  the  pohtically  ignorant 
voters  of  the  larger  districts  how  to  vote  when 
it  came  to  the  filling  of  a  more  important  office 
in  a  larger  election  district.  Thus  the  bosses 
of  the  city  wards  and  the  country  districts 
combined  to  agree  on  who  should  be  presented 

s8 


Unpopular  Government — How  Established 

to  the  voter  for  election  and  to  direct  the 
voter  how  to  vote.  Naturally  out  of  the  com- 
bination some  men  emerged  capable  of  leading 
the  combination  of  bosses.  Thus  arose  the  city 
or  county  machine.  In  extraordinary  instances 
a  single  man  became  a  city  or  county  boss  for 
a  particular  party  organization.  In  the  same 
way,  when  the  districts  of  a  state  were  well 
provided  with  permanent  political  bosses,  there 
was  a  movement  among  the  leaders  to  combine 
into  a  state  machine.  Again,  in  extraordinary 
cases  a  single  man  was  great  enough  to  be  the 
supreme  political  leader  of  a  political  party 
organization  in  a  state  and  to  lead  it  regularly 
to  victory  at  the  polls. 

Thus  almost  imperceptibly,  but  with  as- 
tonishing rapidity,  there  have  been  developed 
state-wide  feudal  organizations  for  the  pur- 
pose— in  form  at  least — of  advising  the  politi- 
cally ignorant  voter  how  to  vote,  but  in  reaUty 
for  the  purpose  of  casting  his  vote  for  him,  and 
thus  securing  the  pohtical  power  of  the  electo- 
rate. In  each  smallest  election  precinct  there 
is  a  regular  band  of  workers  under  a  precinct 

59 


Unpopular  Government  in  the  United  States 

captain.  In  each  collection  of  precincts  which 
make  the  smallest  electoral  district,  like  a  ward 
in  a  city  or  a  township  in  the  country,  there 
must  be  a  mesne  lord  whom  the  captains  obey. 
In  larger  election  districts,  such  as  a  city  or  a 
county,  or  a  combination  of  counties,  there 
must  be  tenants  in  chief  over  the  mesne  lords. 
Finally,  there  is  the  great  lord  paramount  for 
the  whole  state.  No  precinct  captain  is  per- 
mitted to  have  any  idea  of  principles  or  poUcies. 
It  is  his  duty,  with  his  aids,  to  produce  dele- 
gates for  conventions  who  will  vote  as  the 
organization  chiefs  direct,  canvass  the  precinct 
before  election  and  buy,  command,  instruct, 
persuade,  or  coerce,  as  the  exigencies  of  the 
case  may  require,  votes  for  the  candidates 
named  by  the  organization  chiefs.  When  the 
precinct  captain  and  his  workers  fail  to  perform 
these  services  successfully,  out  they  must  go, 
and  others,  waiting  eagerly  for  promotion,  will 
take  their  places.  When  they  show  abihty 
they  will  make  progress  in  the  organization. 
The  district  boss  must  equally  keep  his  cap- 
tains in  obedience  and  effectiveness.     For  him 

60 


Unpopular  Government — How  Established 

also  there  is  promotion  or  reduction  to  the  ranks 
in  prospect.  It  is  the  law  of  life  and  the  source 
of  the  organization's  power  that  its  officers  ren- 
der impHcit  obedience  to  their  immediate  chiefs 
and  that  a  mighty  personality  direct  the  whole. 
Thus  does  the  power  of  the  electorate  pass 
to  those  who  take  advantage  of  the  political 
ignorance  of  the  electorate  to  direct  it  how  to 
vote. 

Section  5 

The  Power  of  Government  Passes  into  the  Hands  of  Those 
Who  Are  Able  to  Direct  the  Majority  of  the  Politically- 
Ignorant  How  to  Vote.  They  Constitute  an  Extra- 
legal but  None  the  Less  Real  Government 

The  professional  adviser  and  director  to  the 
politically  ignorant  voter  aims  to  secure  con- 
trol of  as  much  of  the  power  of  government  as 
possible.  His  means  to  that  end  consist  in  be- 
coming the  most  important  single  factor  in  the 
fiUing  of  the  offices  of  the  legal  government. 
Success  in  advising  and  directing  a  majority 
of  the  poUtically  ignorant  voters  how  to  vote 
places  in  his  hands  the  power  to  fill  by  appoint- 
ment all  offices  for  which  candidates  are  pre- 

61 


Unpopular  Government  in  the  United  States 

sented  who  are  unknown  to  the  electorate 
generally.  Our  political  boss  naturally  tends 
to  appoint  men  who  are  loyal  to  him  and  to 
his  power,  and  by  this  means  he  naturally 
secures  a  certain  control  over  part  of  the 
local  governmental  power.  In  the  same  way, 
the  prize  of  a  combination  of  successful  local 
bosses  is  the  power  to  appoint  the  majority 
of  the  officeholders  of  some  more  extensive 
and  important  local  municipal  government  and 
thus  obtain  control  of  a  part  of  its  governmental 
power.  When  the  state-wide  organization  of 
the  feudal  army  of  directors  and  advisers  to 
the  politically  ignorant  voter  has  been  thor- 
oughly perfected,  with  a  man  of  great  abihty 
at  its  head,  the  prize  to  be  obtained  is  the 
principal  part  of  the  entire  governmental  power, 
whether  state  or  local.  More  and  more  such 
an  organization  will  fill  with  men  loyal  to  its 
leaders  the  local  and  state  legislative  bodies, 
the  local  and  state  executive  offices,  and  even 
places  upon  the  bench.  Such  an  organization, 
when  continuously  successful  for  any  length  of 
time,  will  have  actually  filled  all  of  the  less 

63 


Unpopular  Government — How  Established 

conspicuous  and  less  important  offices  in  the 
executive,  legislative,  and  judicial  departments 
of  the  state  and  local  governments. 

But  the  influence  of  such  an  organization 
will  go  farther  than  this.  Being  in  existence 
and  efficient,  it  will  often  be  a  determining 
factor  in  nominating  and  electing  a  candidate 
for  an  office  so  important,  and,  viewed  by 
itself,  so  conspicuous,  that  in  a  special  elec- 
tion to  fill  that  one  office  the  intelligence  of  the 
electorate  would  be  displayed  at  its  maximum. 
For  instance,  if  we  look  at  the  federal  govern- 
ment alone,  we  find  that  the  voter  casts  his 
ballot  only  for  president,  vice-president,  and 
usually  only  one  congressman.  The  congress- 
man is  selected  for  the  most  part  from  a  fairly 
small  district.  Taking  the  federal  government 
by  itself,  the  voter's  function  in  selecting  a 
congressman  is  so  simple  and  direct  that  no 
professional  advice  or  direction  is  needed  ex- 
cept in  the  unusual  case  where  the  district  is 
filled  with  an  actual  illiterate  vote.  But  the 
moment  the  vote-directing  organization  is 
called  into  being  in  the  congressional  district 

63 


Unpopular  Government  in  the  United  States 

because  of  the  artificially  produced  political 
ignorance  of  the  voter  in  respect  to  candidates 
for  various  local  municipal  offices  and  state 
offices,  such  an  organization  at  once  exercises 
an  important  control  over  the  nomination  and 
election  of  the  congressman.  In  the  same  way 
the  organization  will  gain  a  very  considerable 
influence  over  the  nomination  and  election  of 
candidates  for  local  municipal  offices  where 
they  consist  only  of  the  mayor  and  an  alder- 
man from  each  ward,  who  are  elected  at  a 
special  election.  Such  an  organization  will 
have  at  all  times  a  vast  influence  in  the  nomi- 
nation and  election  of  judges,  even  when  they 
are  chosen  at  a  special  election.  There  is  no 
doubt  that  the  nomination  for  governor  of  the 
state  and  president  of  the  United  States  may 
from  time  to  time  be  greatly  influenced  by 
poUtocrats  whose  power  is  based  upon  the 
poUtical  ignorance  of  the  voter  in  respect  to 
candidates  for  aU  manner  of  obscure  offices  in 
the  state  and  local  governments.  Speaking 
generally,  if  the  voter  is  habitually  so  ignorant 
poHticaUy  that  the  politocrats  have  secured, 

64 


Unpopular  Government — How  Established 

to  a  considerable  extent,  the  power  to  direct 
him  how  to  vote,  then  the  poHtocrats  will 
exercise  a  great  deal  of  influence  in  determin- 
ing who  shall  be  elected  to  offices  so  con- 
spicuous and  important  that  if  they  were  the 
only  ones  filled  by  election  the  voter  would 
exercise  a  high  degree  of  independence  and 
intelligence  in  making  his  selection  and  the 
services  of  the  same  politocrats  would  be 
wholly  dispensed  with. 

A  vote-directing  organization  which  is  stead- 
ily successful  in  a  given  state  or  local  govern- 
ment for  eight  years  will  reach  a  point  where  it 
actually  places  in  practically  all  the  state  and 
local  offices  that  are  filled  by  election,  and  also 
in  the  House  of  Representatives,  in  Congress, 
and  in  the  United  States  Senate,  men  who  are 
loyal  to  the  organization  and  its  leaders  before 
everything  else.  The  leader  of  such  an  organiza- 
tion may  even  have  obtained  a  controlling  in- 
fluence with  the  governor  of  the  state  and  the 
president  of  the  United  States,  so  far  as  their 
power  extends  to  local  appointments  and  affairs. 
When  this  occurs,  the  leaders  of  the  state  and 

6s 


Unpopular  Government  in  the  United  States 

local  vote-directing  organization  have  become 
the  real  though  extra-legal  government.  The 
real  power  of  government,  both  state  and  local, 
and  an  important  influence  in  the  power  of  the 
federal  government  are  in  their  hands.  Local 
and  state  executive  officers  and  local  and  state 
legislators  will  take  orders  from  these  leaders. 
Judges  in  a  more  subtle  way  will  take  account 
of  their  wishes. 

Thus  we  have,  however  imperceptibly,  none 
the  less  effectively  changed  the  character  of  our 
government.  The  very  excess  of  our  pre- 
cautions to  prevent  the  power  of  government 
from  coming  into  the  hands  of  the  few  has  de- 
livered the  power  of  government  into  the  hands 
of  the  few.  So  obviously  and  completely 
has  the  elaborate  effort  of  our  constitution- 
makers  failed  to  keep  governmental  power 
out  of  the  hands  of  the  few  that  we  might  as 
well  accept  it  as  axiomatic  that  governmental 
authority  in  any  highly  organized  society  can- 
not be  prevented  from  becoming  concentrated 
in  the  hands  of  the  few.  Our  form  of  govern- 
ment has  indeed  changed  from  the  decentraUzed 

66 


Unpopular  Government — How  Established 

democracy  of  the  frontier  to  the  centralized 
pohtocracy  of  a  highly  organized  civilization. 
We  have  turned  our  back  upon  the  autocrat 
and  the  aristocrat  only  to  find  ourselves  in  the 
hands  of  the  poHtocrat. 

Section  6 

The  Extra-legal  Government  Uses  Its  Power  Selfishly  to 
Maintain  Itself  and  to  Benefit  Those  Who  Have 
Organized  and  Supported  It 

Our  extra-legal  government  is  not  one  of 
altruists.  It  may  be  reHed  upon  to  act  selfishly 
in  two  respects:  First,  it  will  use  all  of  its  in- 
fluence and  power  to  maintain  itseK.  Then  as 
its  tenure  of  power  becomes  more  secure  it  will 
use  that  power  to  reward  the  leaders  who  have 
organized  and  supported  it. 

The  clear  perception  of  what  is  necessary 
for  the  maintenance  of  the  extra-legal  govern- 
ment will  provide  the  wise  poHtocrat  with  a 
deep-rooted  political  philosophy.  His  creed, 
if  uttered,  would  sound  something  like  this: 
"  I  beheve  in  the  disfranchisement  of  the  voter 
by  keeping  him  too  ignorant  poUtically  to  vote 
inteUigently.  I  believe  that  all  voters,  no 
matter  how  intelligent  in  general,  can  be  made 

67 


Unpopular  Government  in  the  United  States 

politically  ignorant  in  voting  by  placing  upon 
them  a  burden  of  investigating  candidates  and 
attending  elections  which  they  can  conceivably, 
but  will  not  in  fact,  perform.  I  believe  that 
such  a  burden  upon  the  voter  can  be  produced 
most  readily  by  the  decentralization  of  govern- 
mental power  in  every  possible  way,  and  the 
constant  application  of  the  elective  principle. 
I  therefore  believe  in  fostering  the  popular 
fear  of  kings,  the  popular  prejudice  against 
the  centrahzation  of  power  and  the  fiUing  of 
ofl&ces  by  appointment.  Above  all  I  believe 
in  more  democracy  (i.e.,  more  applications 
of  the  elective  principle)  as  the  cure  for  the 
ills  of  democracy." 

With  these  deep-seated  convictions,  the 
course  of  action  of  the  wise  politocrat  in  many 
respects  is  not  difficult  to  predict  and  not 
difficult  to  understand  when  it  is  observed. 
The  chief  executive  of  the  state  or  of  the 
United  States  who,  in  response  to  any  popular 
demand,  attempts  to  influence  or  coerce  the 
legislature  must  be  publicly  rebuked.  It  must 
be  pointed  out  that  he  is  overstepping  the 

68 


Unpopular  Government — How  Established 

bounds  of  his  constitutional  power.  He  must 
confine  himself  to  the  limited  constitutional 
sphere  of  the  executive.  When  a  man  becomes 
governor  or  president  he  must  cease  to  be  a 
citizen.  The  promotion  of  decentralization  of 
governmental  power  through  the  creation  of 
several  new  municipal  corporations  operating 
in  the  same  district  is  a  step  which  should 
always  receive  the  favorable  attention  of  the 
politocrats.  The  constant  application  of  the 
elective  principle  to  each  newly  created  office 
must  be  maintained.  The  election  district 
furthermore  should  always  be  kept  as  large  as 
possible  and  always  larger  than  the  personal 
reputation  of  anyone  who  would  be  likely  to 
seek  a  given  office  which  the  voters  of  the 
district  select.  Methods  of  redistricting  can 
be  devised  and  carried  out  so  as  to  yield  the 
maximum  amount  of  power  for  the  extra-legal 
government  for  the  time  being  in  power. 
Election  laws  must  be  so  shaped  and  adminis- 
trative acts  so  directed  as  to  enable  the  organiza- 
tion to  marshal  its  votes  in  the  most  effective 
way.    New  parties  and  independent  movements 

69 


Unpopular  Government  in  the  United  States 

must  be  discouraged.  One  of  the  neatest  de- 
vices to  effect  such  discouragement  is  to  retain 
the  party  circle  and  at  the  same  time  provide 
that  no  candidate  shall  appear  on  more  than 
one  ticket  on  the  ballot.  That  will  force  all 
candidates  who  can  secure  the  extra-legal 
government's  party  nomination  to  take  it  as 
against  an  independent  nomination.  The  fact 
that  the  extra-legal  government  puts  up  some 
men  w^ho  are  satisfactory  and  who  cannot  also 
be  placed  upon  an  independent  ticket  will  dis- 
courage the  putting  in  the  field  of  any  inde- 
pendent ticket.  No  harm  will  be  done  to  the 
extra-legal  government  by  pohtocrats  if  the 
network  of  governmental  bodies  becomes  very 
complex,  or  if  the  details  of  carrying  out  pro- 
visions of  election  laws  become  so  difficult  to 
understand  that  the  whole  machinery  of  elec- 
tions must  be  directed  by  a  few  experts. 

But  the  chief  care  of  the  wise  politocrat  will 
not  be  to  acquire  a  selfish  political  philosophy 
or  a  selfish  program  for  governmental  legisla- 
tion. Of  paramount  importance  is  the  organiz- 
ing, recruiting,  training,  feeding,  and  caring  for 

70 


Unpopular  Government — How  Established 

the  feudal  army  of  directors  and  advisers  to 
the  poUtically  ignorant  voter  and  the  reward- 
ing of  the  officers  and  lesser  leaders  of  that 
army  according  to  their  position.  So  far  as 
possible,  of  course,  the  district  and  precinct 
workers  will  be  given  places  upon  the  pubhc 
pay-rolls  and  so  fed  and  clothed  from  the  public 
treasury.  In  return  for  what  they  receive  from 
the  pubhc  they  will  do  the  minimum  amoimt  of 
work  for  the  public  and  the  maximum  amount 
for  the  organization.  Places  on  the  pay-rolls 
of  private  corporations  may  also  be  at  the  dis- 
posal of  the  leaders  among  the  politocrats.  In 
a  city  of  any  size  much  small  graft  connected 
with  the  issuing  of  Hcenses  of  all  sorts,  the  sell- 
ing of  hquor,  the  business  of  vice,  and  the 
activities  of  the  underworld  may  be  picked  up 
by  the  privates  and  captains  in  the  organiza- 
tion. The  lesser  poUtocrats  will  take  the  higher 
salaried  positions  and  fee  offices.  It  will  not 
interfere  with  their  obtaining  these  places  that 
they  must  submit  to  an  election.  The  work 
of  the  office  will  be  done  by  a  chief  deputy 
paid  out  of  the  pubUc  treasury.     The  holder 

71 


Unpopular  Government  in  the  United  States 

of  the  office  will,  therefore,  be  enabled  to  spend 
his  entire  time  conducting  the  business  of 
advising  and  directing  the  poHtically  ignorant 
voter  whom  to  vote  for.  The  larger  graft 
connected  with  the  protection  of  the  busi- 
ness of  vice  and  the  activities  of  the  under- 
world will  go  to  those  who  are  still  higher  up 
among  the  politocrats.  This,  however,  is  a 
dirty  and  risky  mode  of  reward  and  the  pro- 
tection which  can  be  given  has  its  limits. 
Many  politocrats,  and  among  them  the  most 
powerful,  will  not  touch  it  personally.  In 
certain  districts  men  of  excellent  social  stand- 
ing and  mental  attainments  can  be  used  to 
advantage  by  the  extra-legal  government.  In 
most  instances  material  of  this  sort  can  be 
drawn  from  among  lawyers.  The  reward  for 
those  who  are  constant  and  effective  in  their 
service  wiU  be  a  place  in  the  corporation  coun- 
sel's office  or  the  state's  attorney's  office,  and 
finally  a  place  upon  the  bench.  The  larger 
graft  of  pubHc  contracts  is  reserved  for  the 
overlords  of  the  feudal  organization.     But  even 

this  the  great  leaders  will  not  touch. 

72 


Unpopular  Government — How  Established 

The  great  prize  which  is  reserved  for  the 
lord  paramount  and  his  tenants  in  chief  is  the 
privilege  of  entering  into  an  alliance,  offensive 
and  defensive,  with  special  business  and  prop- 
erty interests  which  need  the  aid  of  the  local 
or  state  governmental  power  to  exploit  to  the 
best  advantage  the  many,  or  the  protection 
from  governmental  interference  at  the  demand 
of  the  many  who  are  being  exploited.  Indeed, 
so  close  may  the  relations  become  between  the 
great  captains  of  such  special  business  and  prop- 
erty interests  and  the  extra-legal  government  by 
poHtocrats,  that  the  real  power  of  government 
may  to  some  extent  actually  reside  in  the 
former  rather  than  the  latter.  It  will  indeed  be 
difficult  in  many  instances  to  tell  which  group 
commands  and  which  obeys.  Where  the  leaders 
of  both  are  equally  able  there  will  be  a  complete 
partnership. 

Section  7 

The  Extra-legal  Government  Is  Able  to  Maintain  Itself  in 
the  Face  of  Popular  Disapproval 

The  conditions  under  which  extra-legal  gov- 
ernment exercises  its  power  and  the  manner  of 

73 


Unpopular  Government  in  the  United  States 

that  exercise  furnish  it  with  certain  consider- 
able advantages  in  its  very  natural  effort  to 
maintain  itseh  in  the  face  of  popular  disap- 
proval. 

The  extra-legal  government  has  the  advan- 
tage of  being  hidden  from  the  electorate.  The 
mass  of  voters  can  tell  who  only  a  few  con- 
spicuous officeholders  in  the  legal  government 
at  any  one  time  are.  Of  the  existence  of  a 
thoroughly  organized  extra-legal  government 
they  have  no  real  knowledge  whatever.  If 
they  have  some  idea  of  machines  and  bosses 
it  is  vague  and  imperfect.  They  see  only  a 
Httle  at  a  time  and  have  no  idea  who  it  is  that 
casts  their  ballots  for  them.  The  voter  who 
masters  such  secrets  is  rare  indeed.  Even  the 
very  intelligent  man  who  is  a  voter  cannot  tell 
anything  in  his  own  district  about  the  extra- 
legal government.  He  only  knows  that  there 
are  bosses  whom  he  never  seems  to  have  a 
chance  to  vote  against.  This  secrecy  on  the 
part  of  the  extra-legal  government  is  an  in- 
valuable asset  in  enabling  it  to  retain  power. 
So    long  as   extra-legal   government   remains 

74 


Unpopular  Government — How  Established 

hidden,  there  is  Httle  chance  of  the  voter 
causing  it  any  serious  damage. 

The  extra-legal  government  has  a  great  ad- 
vantage also  in  the  fact  that  while  it  is  the  real 
government,  the  electorate  is  constantly  vot- 
ing for  the  legal  but  dummy  government  of 
oflSceholders.  Of  course,  if  the  voter  knew  the 
connection  between  each  officeholder  and  the 
extra-legal  government  he  might  vote  intelli- 
gently, but  that  is  information  of  the  most 
secret  kind.  In  many  instances  it  is  impossible 
for  anyone  to  obtain  it.  Certainly  it  cannot  be 
expected  that  a  voter  who  is  in  ignorance  of 
the  quahfications  and  personality  of  most  of 
the  candidates  for  office  will  ever  know  what 
connection  any  of  them  have  with  a  more  or 
less  secret  extra-legal  government. 

The  wise  politocrat  appreciates  the  advantage 
which  his  extra-legal  government  has  in  hiding 
behind  the  legal  government  and  in  the  fact 
that  his  power  is  not  subject  directly  to  the 
approval  or  disapproval  of  the  electorate.  He 
knows,  however,  that  from  time  to  time  some 
loyal  adherent  of  the  extra-legal  government 

75 


Unpopular  Government  in  the  United  States 

will  demand  and  must  be  given  the  nomination 
for  an  office  so  prominent  that  his  record  will 
be  fully  investigated  and  his  relation  to  the 
extra-legal  government  become  wddely  known. 
Then  the  existence  of  extra-legal  government 
will,  in  the  contest  for  that  office,  become  an 
issue,  especially  if  there  be  an  independent 
anti-politocratic  candidate.  But  experience 
will  make  it  clear  that  such  an  issue  must  be 
avoided.  The  extra-legal  government  must 
drop  as  a  candidate  for  an  office  of  any  promi- 
nence a  man  known  by  the  electorate  to  be 
loyal  to  the  politocracy.  In  his  place  may  be 
put  a  fresh  dummy  or  a  real  independent,  as 
the  exigencies  of  the  case  require.  The  former 
step  is,  of  course,  from  the  point  of  view  of  the 
politocrat,  to  be  preferred.  When,  however, 
the  outlook  is  dark  and  forbidding  for  the  extra- 
legal government  in  power,  its  leaders  will 
assent  with  a  show  of  enthusiasm  to  the  nomi- 
nation of  a  Hughes  or  a  Wilson.  They  know 
that  the  naming  of  an  independent  and  popular 
man  who  is  likely  to  be  successful  at  the  polls 

will   enable   their   extra-legal   government   to 

76 


Unpopular  Government— How  Established 

appoint  to  office  the  subordinate  elective 
officeholders  in  the  legal  government.  They 
know  that  a  governor  surrounded  by  inde- 
pendent subordinate  officers  and  opposed  by 
legislators  selected  by  and  loyal  to  the  extra- 
legal government  can  do  that  government  no 
permanent  damage.  They  know  that  most 
men  can,  during  their  term  of  office,  when 
placed  in  close  contact  with  such  opposition, 
be  worn  down  and  disheartened,  so  that  they 
are  glad  to  quit  when  the  opportunity  for  pro- 
motion to  a  place  where  they  need  no  longer 
war  upon  extra-legal  government  is  tendered 
them.  Thus,  a  popular  governor  may  be  in- 
duced to  accept  the  position  of  vice-president 
or  a  place  upon  the  Supreme  Court  of  the 
United  States. 

The  failure  to  observe  this  principle  of  action 
at  the  Republican  National  Convention  of  191 2 
has  started  the  most  widespread  and  serious 
movement  against  extra-legal  government  that 
we  have  yet  had.  According  to  all  the  rules 
of  astute  politocratic  management,  the  repre- 
sentatives of  extra-legal  government  in  that 

77 


Unpopular  Government  in  the  United  States 

convention  should  have  acquiesced  in  the  selec- 
tion of  the  most  popular  and  prominent  leader 
available,  in  spite  of  the  fact  of  his  independ- 
ence. They  should  have  driven  into  power 
with  him  as  many  of  their  adherents  as  pos- 
sible, or  let  him  go  down  to  defeat.  Which- 
ever happened,  extra-legal  government,  as 
conducted  by  means  of  the  control  of  an 
extra-legal  oligarchy  over  successful  candidates 
for  office,  would  not  have  been  disrupted  and  a 
general  movement  inimical  to  the  whole  basis 
of  extra-legal  government  would  have  been 
averted.  The  revelation  of  the  existence  of  a 
power  in  a  few  hands  which  could  legally  over- 
ride popular  desires  in  the  selection  of  a  candi- 
date for  the  president  of  the  United  States,  and 
the  exhibition  of  what,  to  a  large  number  of 
people,  must  have  seemed  to  be  the  actual 
exercise  of  such  a  power,  and  the  defeat  of  the 
popular  will  clearly  expressed  could  have  only 
the  result  of  launching  one  of  the  greatest 
independent  political  movements  of  half  a 
century,  with  its  principal  attack  upon  extra- 
legal government  as  it  has  grown  up  in  the 

78 


Unpopular  Government — How  Established 

United  States.  This  is  the  same  sort  of  mis- 
take that  the  advocates  of  slavery  made  when 
they  underestimated  the  unexpressed  determi- 
nation of  the  North  to  preserve  the  Union. 

There  are,  of  course,  as  many  rival  vote- 
directing  organizations  as  there  are  political 
parties  which  have  become  established  and 
have  a  name  with  any  good-will  attached.  If 
two  of  these  organizations  are  at  all  well 
matched  and  occupy  practically  the  entire 
field,  their  leaders  frequently  make  secret 
agreements  according  to  which  the  govern- 
mental power  is  divided.  One  takes  the  city 
and  the  other  the  county,  or  one  a  great 
metropolitan  district  and  the  other  the  state. 
Such  arrangements  are  preferred  to  a  life- 
and-death  struggle  for  supremacy.  They  result 
in  a  combination  which  it  is  exceedingly  diffi- 
cult for  the  politically  ignorant  majority  of  the 
electorate  to  overcome. 

After  all,  however,  do  not  the  people  rule? 
Does  not  the  power  of  such  extra-legal  govern- 
ment continue  by  their  choice?  Can  they 
not  smash  it  if  they  choose?    Theoretically, 

79 


Unpopular  Government  in  the  United  States 

yes;  practically,  no!  The  extreme  decen- 
tralization of  the  legal  government — the  success 
of  the  constitution  and  laws  in  preventing  the 
concentration  of  power  at  any  one  point  in 
any  one  office  in  a  legal  government — is  the 
very  foundation  upon  which  the  existence  of 
the  extra-legal  government  rests.  It  is  also 
the  chief  reason  for  its  continuance  in  power. 
The  paramount  power  of  the  electorate  as  a 
whole  is  broken  into  infinitesimal  fragments 
by  the  constitution  and  laws  providing  for  a 
multitude  of  independent  offices  to  be  filled  by 
election.  To  turn  out  an  extra-legal  govern- 
ment which  has  filled  practically  all  of  the 
offices  in  the  legal  government  the  electorate 
must  be  vigilant,  active,  and  successful,  not 
in  filling  one  office  or  a  few  offices  at  a  single 
election,  but  in  the  filling  of  a  hundred  offices 
voted  for  at  all  the  elections  occurring  during 
a  period  of  from  four  to  eight  years.  The 
extra-legal  government  stands  as  a  solid,  well- 
organized,  single-headed  army  against  a  large 
but  disorganized  mass.  The  latter  may  tri- 
umph at  points  or  on  occasions,  but  it  will 

80 


Unpopular  Government — How  Established 

exhaust  its  strength  in  comparatively  small 
and  unimportant  victories.  Coming  to  the 
voting  booth  constantly  handicapped  by  the 
densest  political  ignorance,  without  organiza- 
tion and  without  leaders,  it  falls  again  and 
again  before  the  trained  and  permanent  feudal 
army  of  vote-directors.  There  will  be  no 
serious  danger  to  our  extra-legal  government 
from  the  electorate  as  a  whole  while  the  officers 
of  the  legal  government  are  shorn  of  power 
or  the  opportunity  by  combination  to  secure 
power  and  compelled  to  face  constantly  an 
electorate  ignorant  of  their  personalities  and 
their  qualifications  for  office.  It  is  one  of  the 
maxims  of  modern  warfare  that  the  important 
thing  is  to  destroy  or  disrupt  the  opposing 
army — not  merely  to  occupy  a  particular  place 
or  a  particular  territory.  In  the  same  way, 
in  a  war  upon  unpopular  government,  it  is 
important  to  destroy  or  disrupt  it,  not  merely 
to  fill  a  few  offices,  or  even  many  offices,  with 
good  men  who  are  opposed  to  an  extra-legal 
government  which  still  continues  in  existence, 
ready  again  to  seize  the  power  of  government 

8i 


Unpopular  Government  in  the  United  States 

when  occasion  offers.  So  long  as  the  real 
government  is  in  an  extra-legal  oligarchy  at  the 
head  of  a  feudal  organization  of  vote-directors 
which  remains  unimpaired,  while  the  popular 
army  occupies  for  the  time  being  a  few  offices 
denuded  of  power,  the  campaign  has  accom- 
pUshed  next  to  nothing.  In  a  few  more  elec- 
tions the  extra-legal  government  will  again  have 
secured  as  complete  control  as  before. 

Even  when  monarchy  was  absolute  and  a 
popular  uprising  overthrew  it  by  means  of  a 
successful  revolution,  the  ultimate  result  was 
merely  to  substitute  a  new  absolute  monarchy 
for  the  old  one.  So  with  us  today,  when  one 
extra-legal  government  by  politocrats  is  over- 
thrown by  the  extraordinary  and  prolonged 
efforts  of  the  electorate,  nothing  happens  ul- 
timately but  the  substitution  of  a  new  extra- 
legal government  for  the  old.  The  fact  is  that 
so  long  as  we  know  of  no  other  form  of  govern- 
ment except  an  absolute  monarchy,  or  insist 
upon  a  plan  of  government  which  necessarily 
results   in   a   decentraUzed   legal   government 

being  controlled  by  a  centraUzed  extra-legal 

82 


Unpopular  Government — How  Established 

government  of  politocrats,  we  shall  never  have 
any  other  form  of  government  except  a  mon- 
archy or  an  extra-legal  pohtocracy.  The  tend- 
ency of  the  mass  of  the  people  to  acquiesce 
in  any  governmental  arrangement  that  they 
seem  not  to  be  able  to  escape  from  is  a  great 
asset  to  the  maintenance  of  power  by  the  extra- 
legal government.  If  it  takes  a  supreme  effort 
for  a  number  of  years  successively  to  oust  a 
present  extra-legal  government,  and  when  the 
result  of  so  doing  is  merely  to  substitute  another 
extra-legal  government  of  the  same  sort,  what 
is  the  use  of  the  extraordinary  effort  made? 
Why  not  advise  the  voter  to  concentrate  his 
efforts  from  time  to  time  in  getting  good  men 
in  the  more  important  offices  and  letting  the 
rest  go  ?  This  attitude  of  mind  becomes  more 
and  more  common,  especially  among  inteUi- 
gent  men  who  see  the  actual  situation.  It  is 
substantially  a  surrender  of  all  the  offices 
to  the  control  of  the  extra-legal  government. 
Such  are  the  circumstances  which  a  priori 
make  the  continuance  of  our  extra-legal  govern- 
ment, in  the  face  of  popular  disapproval,  prob- 

83 


Unpopular  Government  in  the  United  States 

able.  The  fact  that  it  has  and  does  now  so 
contmue  is  becoming  every  day  more  apparent. 
Suppose,  for  instance,  at  any  time  in  the  last 
ten  years  the  direct  issue  could  have  been 
presented  to  the  electorate  whether  they  pre- 
ferred government  by  an  extra-legal  ohgarchy 
of  poHtocrats,  subject  only  indirectly  and  very 
slightly  at  any  single  election  to  the  electorate, 
or  a  legal  government,  subject  directly  to  the 
will  of  the  electorate.  Can  there  be  any  doubt 
that  the  great  majority  would  vote  the  extra- 
legal government  out  of  power  and  aboUsh 
politocracy  as  they  would  abolish  absolute 
monarchy  or  a  self-perpetuating  oligarchy? 
If  any  demonstration  of  the  temper  of  the 
electorate  on  such  an  issue  be  needed,  we  have 
it  in  the  steady  popularity  of  all  measures 
which  have  been  put  forward  aimed  at  the 
so-called  political  bosses  and  government  by 
them.  Twenty-five  years  ago  it  was  apparent 
to  the  electorate  that  the  ward  boss  in  some 
districts  of  our  larger  cities  maintained  himself 
in  part  a^  least  upon  corrupt  voting.  Hence 
the  Australian  ballot.     Then  it  was  observed 

84 


Unpopular  Government — How  Established 

that  poKtical  machines  supported  their  workers 
by  salaries  from  the  public  pay-rolls.  Hence 
the  civil  service  acts.  Then  the  extra-legal 
government's  control  over  nominations  seemed 
to  be  the  true  source  of  its  power.  Hence  the 
direct  primary.  It  was  also  observed  that  the 
extra-legal  government  had  a  grip  on  the  state 
and  municipal  legislatures  and  the  state  and 
local  executive  offices  and  the  judges.  Hence 
the  initiative,  the  referendum,  and  the  recall. 
It  was  observed  that  the  origin  of  the  extra- 
legal government  and  the  great  source  of  its 
power  came  from  the  complexity  of  our  munici- 
pal governments,  their  cumbersome  adminis- 
trative machinery,  and  the  number  of  offices 
submitted  to  the  electorate.  Hence  the  move- 
ment for  the  consolidation  of  municipal  gov- 
ernments and  their  control  by  a  commission. 
It  has  been  observed  that  the  governor  often 
expressed  in  a  satisfactory  manner  the  desires 
of  a  majority  of  the  electorate,  but  that  he  had 
no  power  to  initiate  legislation.  Hence  the 
two  recent  proposals  that  the  governor's  bills 
be  given  the  right  of  way  upon  the  legislative 

8s 


Unpopular  Governmeni  in  the  United  States 

calendar  so  that  they  could  be  brought  to  a 
vote  and  not  quietly  strangled  by  the  crowding 
of  the  legislative  docket  and  the  action  of  com- 
mittees; and  that  the  governor  be  allowed  to 
submit  for  approval  by  the  electorate  generally 
any  bill  presented  to  the  legislature  and  not 
passed  by  it.^  The  judges,  especially  those 
of  the  Supreme  Court,  were  observed  to  be 
declaring  laws,  in  favor  of  which  there  was 
great  popular  sentiment,  unconstitutional.  The 
courts  were  then  at  once  placed  by  the  electorate 
in  the  same  camp  with  the  extra-legal  govern- 
ment— quite  unjustly  perhaps — and  the  demand 
arose  for  the  recall  of  judges,  or  the  recall  of  ju- 
dicial decisions  on  constitutional  questions,  or  in 
any  event  the  greatest  possible  restriction  upon 
the  court's  power  to  declare  acts  of  the  legis- 
lature unconstitutional,  or  the  elimination  of 
that  power  altogether.  Finally,  we  have  had 
most  recently  a  new  national  party,  which  has 
been  dedicated  in  general  to  the  war  on  extra- 
legal government  and  to  a  program  of  govern- 
mental reform  believed  to  be  inimical  to  its 

'  Post,  chap.  XV. 

86 


Unpopular  Government — How  Established 

existence.  Every  one  of  these  movements 
upon  analysis  shows  the  electorate  conscious 
of  the  deprivation  of  its  power  to  express  its 
will  and  to  enforce  responsibihty  to  it  from  the 
officers  of  the  legal  government. 

We  are  obviously  in  the  midst  of  a  great 
effort  to  meet  an  overpowering  extra-legal 
governmental  force  which  has  been  depriving 
the  electorate  of  its  power  and  legitimate 
influence  in  the  functioning  of  the  legal  govern- 
ment. Such  continued,  increasingly  aggressive, 
and  always  popular  efforts  to  rid  ourselves  of 
extra-legal  government  by  politocrats  points 
very  clearly  to  the  conclusion  that  our  state 
and  municipal  governments  have  in  a  greater 
or  less  degree  fallen  into  the  hands  of  that  sort 
of  government,  and  that  it  has  been  able  for 
a  generation,  and  is  even  now  able,  to  maintain 
itself  in  the  face  of  popular  disapproval.  A 
practical,  workable  form  of  unpopular  govern- 
ment has,  in  spite  of  the  precautions  taken 
to  prevent  it,  been  estabhshed  in  the  United 
States. 


87 


PART  II 
THE  WAR  ON  POLITOCRACY 


CHAPTER  III 

DISSIPATION  OF  POLITICAL  IGNORANCE  BY 
SELF-TAUGHT  POLITICAL  EDUCATION 

If  extra-legal  unpopular  government  by  po- 
litocrats  rests  upon  a  condition  of  political 
ignorance  on  the  part  of  the  electorate,  then 
it  will  be  said  that  the  obvious  cure  is  to  dissi- 
pate that  ignorance  by  political  education.  It 
would  not,  however,  be  suggested  that  this 
political  education  be  compulsory  and  at  the 
expense  of  the  state  by  competent  teachers. 
That  would  irritate  the  electorate,  be  expensive, 
and  probably  end  in  the  establishment  of  a 
state-paid  boss.  No!  The  political  education 
of  the  voter  must  be  self-taught.  He  must  be 
aroused  to  more  knowledge  and  a  more  con- 
scientious performance  of  his  political  duties; 
more  investigating  of  the  qualifications  of  can- 
didates and  greater  efiforts  to  secure  the  proper 
sort  of  candidates.  He  must  spend  the  time 
necessary  to  perform  all  his  political  duties 
and  to  do  so  intelligently  enough  to  make  an 

91 


Unpopular  Government  in  the  United  States 

individual   choice  as   to  every  candidate  for 
every  office  at  every  election. 

Many  persons  of  intelligence  will  regard  this 
as  the  only  means  of  successful  assault  and 
permanent  overthrow  of  extra-legal  and  un- 
popular government  by  politocrats.  They  are 
therefore  content  to  sit  still  and  await  the 
millennium  of  self-taught  political  education 
which  will  enlighten  the  voter.  The  difficulty 
is  that  dissipation  of  political  ignorance  by 
such  means  will  never  occur.  Since  political 
education  is  not  compulsory,  we  have  to  deal, 
not  with  the  political  knowledge  which  the 
voter  might  conceivably  obtain,  but  that  which 
he  actually  secures.  The  fact  is  the  electo- 
rate is  the  sole  judge  of  how  much  work  it  will 
do  in  securing  political  knowledge  and  perform- 
ing political  duties.  On  occasions  it  may  be 
aroused  to  an  exceptional  activity;  on  other 
occasions  it  may  do  nothing  at  all.  Obviously 
then,  in  order  to  obtain  the  highest  percentage 
of  intelligent  voting  on  an  average  it  is  necessary 
that  the  political  duties  of  the  electorate  be  ad- 
justed to  the  amount  of  self-taught  and  self- 

92 


Dissipation  of  Political  Ignorance 

acquired  political  education  that  the  electorate 
wiU  generally  and  in  the  long  run  secure.  If 
the  pohtical  duties  and  education  required  are 
out  of  all  proportion  to  what  the  electorate 
^viU  obtain  for  itself,  then  political  ignorance 
and  neglect  of  pohtical  duties  follows  as  a  mat- 
ter of  course  and  is  a  fixed  and  continuing  con- 
dition. It  is  futUe  then  to  insist  upon  the 
performance  of  duties  which  the  electorate 
will  not  perform  or  the  attainment  of  a  pohti- 
cal education  which  the  electorate  will  not  se- 
cure by  its  own  efforts  and  which  cannot  be 
had  in  any  other  way.  The  proper  course  is 
to  readjust  the  pohtical  duties  of  the  voter 
so  that  what  he  is  called  upon  to  do  he  will 
accompUsh  with  the  minimum  amount  of  igno- 
rance in  view  of  the  effort  which  he  himself 
is  hkely  to  develop  to  inform  himself  and  make 
an  inteUigent  choice. 

When,  therefore,  we  find  an  extra-legal  un- 
popular government  by  politocrats  established 
by  reason  of  the  long-continued  and  increasing 
pohtical  ignorance  of  the  voters,  who  are  on 
the  whole  an  educated  and  inteUigent  class  of 

93 


Unpopular  Government  in  the  United  States 

citizens,  the  necessary  inference  is  that  the 
poUtical  duties  of  the  voter  and  the  require- 
ments of  self-obtained  poHtical  education  have 
been  placed  far  beyond  his  willingness  to  per- 
form, or  perhaps  even  beyond  the  possibiUty  of 
fulfilment  by  him.  To  insist  then  upon  self- 
taught  poUtical  education  which  the  voter  has 
not  in  the  past  and  will  not  in  the  future  and 
perhaps  actually  cannot  secure  is  to  all  practi- 
cal intents  and  purposes  to  ignore  utterly  the 
cause  which  makes  the  existence  of  extra-legal 
unpopular  government  by  poUtocrats  perma- 
nent. It  offers  no  means  whatever  for  ridding 
ourselves  of  such  government. 


94 


CHAPTER  IV 

THE  AUSTRALIAN  BALLOT  AND  CRTL- 
SERVICE  ACTS 

The  evolution  of  the  modern  politocracy 
began  with  the  ward  boss  in  districts  of  our 
larger  cities  where  voting  was  ignorant  because 
the  population  was  largely  foreign,  illiterate, 
and  easily  corrupted,  cajoled,  or  frightened. 
The  boss's  methods  of  carrying  elections  were 
coarse.  The  business  of  vice  and  the  activities 
of  the  underworld  were  protected  and  the  cor- 
rupt and  illegal  vote  increased  to  the  utmost. 
Indeed,  to  the  average  citizen  and  his  leaders  it 
seemed  that  the  power  of  the  boss  rested  mainly 
upon  the  corrupt  and  illegal  vote.  They  saw 
that  the  opportunity  of  securing  this  vote  was 
large  because  of  the  loose  method  of  conducting 
elections.  At  once  advocacy  of  the  Australian 
ballot  law  became  a  part  of  the  fight  against  the 
boss.  Voters  must  be  registered  in  advance  of 
election  day  and  opportunity  given  to  challenge 
all  voters  so  registered.     The  ballot  must  be 

95 


Unpopular  Government  in  the  United  States 

secret,  so  that  the  corrupter  could  never  be  sure 
that  the  bribed  dehvered  the  vote  which  he  had 
been  paid  for.  The  remedy  proposed  received 
an  overwhelming  popular  approval  a  generation 
ago  and  elaborately  drawn  Australian  ballot 
laws  are  now  almost  everywhere  in  force. 

No  doubt  the  Australian  ballot  laws  were  a 
needed  and  valuable  reform  indeed,  but  the 
power  of  the  boss  did  not  rest  ultimately  upon 
the  illegal  and  corrupt  vote.  Fundamentally  it 
depended  upon  the  political  ignorance  of  the 
voter.  The  power  of  the  ward  boss  not  only 
survived  the  Australian  ballot  laws,  but  it 
tended  to  increase  with  the  spread  of  political 
ignorance  on  the  part  of  the  voter.  Other 
bosses  of  a  different  type  sprang  up  and  ruled  in 
districts  where  the  corrupt  and  illegal  vote  was 
negligible,  but  where  political  ignorance  pre- 
vailed among  an  intelligent  population.  Then 
a  hierarchy  of  bosses  became  a  machine  and  by 
means  of  the  machine  secured  the  control  of  the 
governmental  power  of  a  municipality. 

In  moments  when  the  electorate  turned  its 

attention  to  the  matter  it  observed  that  the 

96 


The  Australian  Ballot 


machine  and  its  leaders  practiced  spoils  politics 
on  a  large  scale.  Its  workers  were  being  cared 
for  by  means  of  salaries  from  the  public  treas- 
ury. Efficiency  in  the  service  of  the  machine 
was  a  more  important  qualification  for  office  or 
employment  than  efficiency  in  the  service  of  the 
municipality.  Naturally  the  enemies  of  the 
extra-legal  government  began  an  agitation  for 
civil-service  acts  which  should  take  the  places 
in  the  public  ser\dce  out  of  politics — that  is,  out 
of  the  control  of  the  politocrats.  Government 
employees  must  be  appointed  only  from  eligible 
lists  made  up  by  a  civil-service  commission  after 
holding  an  examination  designed  to  test  the 
efficiency  of  applicants.  Once  appointed  from 
such  a  list,  the  appointee  must  be  protected  in 
his  position  from  a  discharge  based  upon  politi- 
cal reasons.  The  enemies  of  pohtocracy  raUied 
to  the  support  of  the  civil-service  acts  and  an 
appeal  to  the  popular  disapproval  of  the  extra- 
legal government  in  general  secured  very  widely 
the  adoption  of  civil-service  principles. 

No  doubt  the  civil-service  acts  were  necessary 
and  valuable  legislation,  but  the  power  of  the 

97 


Unpopular  Government  in  the  United  States 

bosses  did  not  rest  fundamentally  upon  their 
ability  to  place  their  workers  on  the  public  pay- 
rolls any  more  than  it  had  rested  upon  the 
corrupt  and  illegal  vote.  The  power  of  the 
extra-legal  government  still  was  predicated  upon 
the  political  ignorance  of  the  voter.  This  cause 
not  only  lay  undisturbed,  but,  with  the  increase 
in  the  number  of  elective  officers,  and  the 
multiplication  of  local  governments  operating 
in  the  same  territory,  each  with  a  corps  of 
elective  officers,  it  became  more  and  more  pro- 
nounced and  widespread.  Even  the  most  in- 
telligent man  became  by  an  artificial  process 
politically  ignorant  and  befogged.  Local  bosses 
became  more  usual,  less  coarse  in  their  meth- 
ods, and  more  able.  Combinations  of  bosses 
secured  more  governmental  power  in  widening 
areas  of  governmental  control. 


98 


CHAPTER  V 

ALTRUISTIC  EFFORTS  TO  ENLIGHTEN 
THE  VOTER 

A  few  astute  friends  of  the  electorate  have 
perceived  that  the  power  of  the  extra-legal 
politocracy  rested  fundamentally  upon  the 
political  ignorance  of  the  voter,  especially  the 
political  ignorance  of  the  voter  who  was  an  in- 
telligent man  and  who  could  render  a  valuable 
judgment  if  he  could  have  the  facts.  This  idea 
produced  the  Independent  Voters'  League, 
which  through  a  small  executive  committee  un- 
dertakes to  gather  facts  and  give  out  informa- 
tion to  the  voters  about  candidates  for  office. 
The  electorate,  of  course,  should  be  given 
information  about  all  candidates  in  every 
election.  But  such  a  task  is  too  large  and  (if 
indeed  it  be  possible  at  all)  would  require  more 
money  than  could  be  raised  by  subscription  from 
a  comparatively  few  people.  These  leagues 
therefore,  when  formed,  have  devoted  all  their 
energies  to  giving  the  voter  information  about 

99 


Unpopular  Government  in  the  United  States 

the  candidates  for  a  single  ofi&ce.  Thus  in 
Chicago  the  Municipal  Voters'  League  informs 
the  electorate  in  each  ward  of  the  city  about  the 
candidates  for  aldermen  and  those  alone.  The 
Illinois  Legislative  Voters'  League  gives  out  in- 
formation concerning  candidates  for  the  state 
legislature. 

It  has  been  noticeable  that  of  the  two  the 
Municipal  Voters'  League  has  been  the  more 
effective.  This  is  due  in  part  at  least  to  the 
fact  that  at  the  Chicago  aldermanic  elections 
the  ballot  is  very  short.  In  many  elections  the 
candidates  for  the  aldermanic  office  and  those 
alone  appear  upon  the  ballot.  Thus  the  voter's 
attention  is  concentrated  upon  the  candidate 
for  a  single  office  from  a  single  district.  The 
advice  of  the  league  is,  therefore,  more  easily 
noted  and  remembered.  On  the  other  hand, 
the  Legislative  Voters'  League  attempts  to  ad- 
vise the  voter  at  an  election  at  which  are  filled 
state,  county,  and  judicial  offices.  The  length 
of  the  ballot  and  the  number  of  offices  to  be  filled 
has  already  been  indicated  by  the  specimen 
ballot  printed,  ante,  opposite  p.  29.     Naturally 


Altruistic  Efforts  to  Enlighten  the  Voter 

the  advice  is  lost  in  the  babel  of  voices  which 
goes  up  concerning  the  candidates  for  the  im- 
portant local,  state,  and  national  ofl&ces  to  be 
fiUed. 

The  bar  primaries  as  they  have  been  held  in 
Chicago  are  the  weakest  of  all  these  altruistic 
efforts  to  inform  the  voter  how  to  vote.  Such 
primaries  are  merely  the  expression  of  prefer- 
ences by  the  lawyers  of  Cook  County  with 
respect  to  the  candidates  for  judicial  office. 
They  do  not  characterize  any  candidate  or  give 
any  facts  concerning  his  record.  Nor  is  any 
effort  made  to  promote  the  election  of  the  men 
approved  at  such  bar  primary.  Where  a  large 
number  of  judges  are  to  be  selected  by  an  elec- 
torate of  several  hundred  thousand,  the  bar 
primary  is  very  weak  indeed  in  its  function  of 
giving  information  to  the  politically  ignorant 
voter. 

Practical  experience  would  seem  to  indicate 
that  altruistic  efforts  to  enlighten  the  political 
ignorance  of  the  voter  who  is  an  intelligent 
man,  to  be  effective  at  all,  must  consist  of 
non-partisan,  direct,  and  personal  criticisms  of 


Unpopular  Government  in  the  United  States 

candidates'  qualifications  and  records.  Even 
then  not  much  can  be  done  unless  the  election 
is  for  a  single  important  office  and  the  election 
district  is  wieldy^  in  size.  Whenever  the  can- 
didates about  whom  the  voter  is  to  be  in- 
formed are  only  four  or  five  out  of  two  or 
three  hundred  running  for  fifty  different  offices, 
the  information  and  criticism  lose  much  of  their 
force.  If  the  altruistic  effort  were  directed 
toward  informing  the  electorate  about  can- 
didates for  unimportant  and  inconspicuous 
offices,  not  only  would  funds  fail  to  be  forth- 
coming, but  its  voice  would  be  unheeded  and 
unheard.  Thus  the  Hmitations  upon  the  ef- 
fectiveness of  the  efforts  of  altruistic  voters' 
leagues  are  very  definitely  fixed. 

Of  course,  newspapers  wield  a  great  influence 
in  elections,  even  when  partisan  in  the  dissemi- 
nation of  news  regarding  candidates  and  in  their 
comments  upon  the  news.  But  this  exhibition 
of  partisanship  occurs  largely  with  reference  to 

'  I.e.,  "one  not  so  large  but  that  the  candidate  who  is  willing  to 
run  may  be  known  with  a  fair  degree  of  ease  by  the  electorate  and 
be  able  with  the  least  expense  to  make  a  personal  canvass"  (see 
chap,  xii,  p.  148). 

102 


Altruistic  Efforts  to  Enlighten  the  Voter 

the  head  of  the  ticket  or  to  candidates  for  two 
or  three  of  the  most  important  offices.  The 
influence  of  a  newspaper  in  advising  and 
directing  the  voter  how  to  vote  when  he  is 
ignorant  of  the  quahfications  of  the  candidates 
and  has  heard  no  public  discussion  in  regard  to 
them,  depends  upon  much  the  same  considera- 
tions as  does  the  influence  of  the  altruistic 
voters'  league.  To  be  an  effective  adviser  to 
the  voter  as  to  candidates  for  subordinate 
offices,  about  whom  there  is  no  public  discus- 
sion, a  newspaper  must  be  to  some  extent  at 
least  non-partisan.  It  must  be  direct  and  ex- 
plicit in  its  recommendations  and  characteri- 
zation of  the  candidates.  It  must  concentrate 
its  efforts  on  some  one  point  in  the  ballot  and  let 
everything  else  go.  These  rules  are  as  a  matter 
of  fact  regularly  observed  by  newspapers.  The 
practice  of  them  very  much  limits  the  actual 
scope  of  a  newspaper's  power  as  an  adviser  and 
director  of  the  poHticaUy  ignorant  voter. 


103 


CHAPTER  VI 

ABOLITION  OF  THE  PARTY  CIRCLE  AND 
PARTY  COLUMN 

In  a  rough  way  it  has  long  been  perceived 
that  the  party  circle  and  party  column  on 
ballots  are  a  vital  part  of  the  machinery  neces- 
sary to  direct  the  pohtically  ignorant  voter  how 
to  vote.  If  the  voter  is  not  only  politically 
ignorant  but  also  iUiterate,  the  party  circle  is 
about  all  he  can  use,  and  only  by  directing  his 
attention  to  that  can  he  be  told  what  to  do.  If 
the  pohtically  ignorant  voter  is  an  intelhgent 
man  he  needs  the  party  column  at  least  so  that 
he  may  take  its  suggestion  when  he  attempts 
to  vote  for  candidates  about  whom  he  knows 
nothing.  It  is  not  strange,  therefore,  that,  in 
the  war  on  poHtocracy,  the  abolition  of  both 
the  party  circle  and  the  party  column  have 
been  proposed.  The  more  remarkable  fact  is 
that  such  a  proposal  has  received  so  little 
support.  The  fact  is  that  with  our  long  bal- 
lots the  abolition  of  the  party  circle  and  the 

104 


Abolition  of  the  Party  Circle 


party  column  would  result  either  in  a  clumsy 
restoration  of  the  party  column  by  the  furnish- 
ing of  party  Hsts  to  the  individual  voter,  or 
else  in  a  disfranchisement  of  the  voter  so 
starthng  and  complete,  and  a  governmental 
chaos  so  much  more  inimical  to  good  govern- 
ment than  the  extra-legal  politocracy,  that 
popular  support  for  such  a  movement  has 
been  generally  withheld. 

Imagine,  for  instance,  the  party  circle  and 
party  column  abohshed  for  the  state  and  local 
offices  on  the  long  ballot  in  Cook  County  re- 
produced, ante,  opposite  p.  29.  We  should 
then  have  a  ballot  with  a  single  column  to  fill 
34  offices,  with  181  candidates,  the  Republican, 
Democratic,  Prohibitionist,  Socialist,  Social 
Labor,  and  Progressive,  all  lumped  together. 
The  large  majority  of  voters  could  not  rely 
upon  their  own  knowledge  of  the  candidates 
to  make  an  inteUigent  choice.  The  burden 
upon  the  voter  is  too  great.  If  the  electorate 
voted  at  random  there  would  arise  a  political 
chaos  in  officeholding.  The  voter  would  be 
least  likely  to  do  this.     If  the  voter  felt  he 


Unpopular  Government  in  the  United  States 

could  not  vote  at  all  he  would  be  plainly  and 
utterly  disfranchised.  The  voter  would  un- 
doubtedly enter  the  voting  booth  with  a  party 
list  in  his  hand  as  the  most  rational  method  of 
securing  advice  as  to  whom  to  vote  for.  That 
would  be  in  effect  a  restoration  of  the  party 
column  which  had  been  abolished.  No  wonder 
then  that  popular  sentiment  cannot  be  aroused 
over  the  general  abolition  of  the  party  circle 
and  the  party  column  where  the  excessively 
long  ballot  is  placed  before  large  numbers  of 
voters  at  frequent  intervals. 


io6 


CHAPTER  VII 

THE  PRIMARIES 

Upon  the  first  appearance  of  the  professional 
ad\'iser  and  director  to  the  pohtically  ignorant 
voter  he  became  a  power  in  the  presentation 
of  candidates  for  election.  It  was  indeed  an 
essential  part  of  his  business  in  advising  the 
voter  how  to  vote  that  he  should  furnish  him 
with  a  candidate  for  whom  the  adviser  and 
director  could  vouch.  At  first  the  adviser 
and  director  of  the  politically  ignorant  voter 
named  only  candidates  in  the  smallest  govern- 
mental districts.  But  as  the  power  and  influ- 
ence of  the  vote-directing  organization  spread  to 
larger  and  more  important  governmental  areas 
its  leaders  continued  to  control  the  nomination 
of  candidates  for  office.  At  first  the  friends  of 
the  electorate  sought  to  meet  the  formidable 
advantage  which  the  vote-directing  organization 
possessed  by  reason  of  its  power  to  control  party 
nominations  by  laws  which  permitted  the  nomi- 
nation of  independent  candidates  by  petition. 
107 


Unpopular  Government  in  the  United  States 

Of  course,  if  the  law  provided  that  no  candidate 
should  appear  on  more  than  one  ticket,  inde- 
pendent nominations  were  likely  to  be  very 
much  discouraged.  But  even  when  the  election 
laws  were  most  liberal  in  permitting  independ- 
ent nominations,  the  vote-directing  organiza- 
tions were  still  able  to  hold  the  field  against 
all  but  the  most  violent  and  revolutionary  in- 
dependent movements.  In  short,  unpopular 
government  by  politocrats  was  still  reasonably 
safe. 

There  were  two  reasons  for  this.  In  the  first 
place,  the  vote-directing  organization  exists  and 
prevails  because  the  voter  is  ignorant  with 
respect  to  the  personality  and  qualifications  of 
candidates  for  office.  He  must  be  advised  and 
directed  how  to  vote.  The  independent  move- 
ment simply  matches  the  strength  of  a  tempo- 
rary and  sporadic  effort  to  advise  and  direct 
the  unorganized  and  inflamed  but  still  ignorant 
voter  how  to  vote,  against  a  permanent  and 
well-organized  vote-directing  machine.  In  the 
long  run  the  latter  will  prevail.  Secondly,  the 
permanent  organization  for  directing  and  ad- 

loS 


The  Primaries 


vising  the  politically  ignorant  voter  has  always 
secured  possession  of  a  revered  party  name. 
This  has  heretofore  given  it  an  overwhelming 
advantage.  It  makes  every  independent  an 
apostate  of  some  party.  So  great  has  been  the 
good-will  of  the  two  principal  national  parties  in 
the  last  fifty  years  that  independent  movements 
have  been  confined  largely  to  local  elections, 
and  even  then  it  is  difficult  to  obtain  candi- 
dates because  of  the  fear  of  party  irregularity. 
Of  these  two  reasons  clearly  the  former  is  the 
more  important.  The  two  principal  national 
parties  of  the  last  half-century  might  cease, 
but  if  the  voter  remained  politically  ignorant 
as  before,  extra-legal  government  would  still 
go  on.  On  the  other  hand,  if  the  voter  could 
be  made  poHticaUy  intelligent  at  all  elections 
and  in  filling  all  ofi&ces  from  the  candidates 
presented,  then  extra-legal  government  would 
have  to  go  and  party  names  would  not  militate 
seriously  against  independent  movements. 

Nevertheless,  when  the  friends  of  the  electo- 
rate came  to  appreciate  the  failure  of  independ- 
ent movements  to  make  headway  against  the 
J09 


Unpopular  Government  in  the  United  States 

extra-legal  government  they  did  not  plan  to 
attack  the  fundamental  difficulty  of  enlighten- 
ing the  voter's  political  ignorance.  Instead, 
they  did  as  they  had  done  before  and  sought  a 
cure  by  attempting  to  eliminate  the  superficial 
and  obvious  cause.  Mr.  La  Follette  in  Wis- 
consin thought  that  he  could  have  no  political 
success  unless  he  continued  to  be  a  member  of 
the  Republican  party.  As  matters  stood,  how- 
ever, he  could  not  obtain  the  nomination  from 
that  party  because  it  was  controlled  by  men 
who  did  not  want  him  in  office.  Yet  Mr. 
La  Follette  was  more  popular  with  the  electorate 
who  usually  voted  the  Republican  ticket  than 
were  the  gentlemen  who  controlled  the  use  of 
the  party  name.  The  obvious  move  for  Mr. 
La  Follette  was  to  take  the  control  of  the  party 
name  from  those  who  held  it.  This  he  did 
by  means  of  legislation  which  permitted  any 
candidate  who  could  secure  a  plurality  of  votes 
of  the  RepubUcan  party  voters  at  a  primary 
election  to  use  the  Republican  party  name  in 
the  election  for  the  office.  This  was  merely 
a  legal  and  orderly  way  of  depriving  an  extra- 


The  Primaries 


legal  government  of  the  advantage  of  using  a 
revered  and  popular  party  name.  That  is  the 
proper  function  of  a  primary  election  law. 

The  availability  of  the  primaries  might,  of 
course,  have  been  limited  to  situations  such  as 
Mr.LaFoUette  created  in  the  Republican  party 
in  Wisconsin — namely,  when  an  independent  in 
the  party  wished  to  wrest  the  control  of  the 
party  name  from  an  extra-legal  government 
which  had  lost  the  confidence  of  the  party  elec- 
torate. If  so  limited  its  use  would  practically 
have  been  confined  to  the  occasions  when  a 
well-organized  revolt  was  in  progress  against  the 
wing  of  a  party  in  control  of  the  party  name. 
Such  occasions  would  be  infrequent  because 
such  revolts  are  infrequent.  Extra-legal  gov- 
ernment having  become  established  and  having 
obtained  control  of  the  party  name,  the  tend- 
ency would  be  to  let  the  matter  alone.  Small 
uprisings  in  regard  to  nominations  for  some 
particular  office  might  occur,  but  a  well- 
organized,  persistent,  and  ably  led  revolt  such 
as  Mr.  La  Follette  has  conducted  in  Wisconsin 
is  the  event  of  a  generation.     Illinois,  and  no 


Unpopular  Government  in  the  United  States 

doubt  many  other  states,  are  just  as  much 
in  need  of  the  leadership  of  a  man  hke  Mr. 
LaFollette  as  Wisconsin.  But  no  such  leader 
appears.  None  seems  likely  to  appear.  Our 
state  lines  have  very  effectively  excluded  Mr. 
La  Follette's  efforts  from  every  state  in  the 
Union  except  his  own.  The  use  of  the  primary 
as  a  means  of  permanently  and  wholly  depriv- 
ing an  extra-legal  government  of  its  power 
to  control  the  use  of  a  party  name  must  be 
regarded  as  unusual  and  extraordinary  and  not 
at  all  likely  to  occur. 

The  use  of  primaries,  however,  has  not  been 
limited  to  occasions  when  an  organized  attempt 
has  been  made  to  deprive  the  minority  of  a 
party  of  the  use  of  the  party  name.  In- 
stead, primaries  have  been  made  compulsory 
and  applied  to  the  nomination  of  practically  all 
elective  officers.  They  must  be  gone  through 
with,  although  there  is  no  organized  revolt 
against  the  usual  nominating  authority.  This 
extreme  application  of  the  primaries  has  been 
justified  on  the  ground  that  the  holding  of 
primaries    would    operate    automatically    and 


The  Primaries 


regularly  on  all  occasions  to  rid  the  electorate  of 
control  of  the  extra-legal  government.  Again, 
we  have  had  a  popular  application  of  the  theory 
that  the  cure  for  the  ills  of  democracy  is  more 
democracy.  If  the  number  of  appeals  to  the 
electorate  which  we  had  before  the  primaries  did 
not  do  any  good,  we  must  have  double  the  num- 
ber of  appeals.  The  futility  of  this  course  will 
be  observed  no  more  clearly  than  in  the  opera- 
tion of  the  universal  and  compulsory  primary. 
Under  the  usual  circumstances  of  normal  con- 
ditions, when  no  organized  revolt  is  being  led 
against  it,  the  extra-legal  government  will  as 
effectively  control  the  results  at  primaries  as  it 
does  results  at  elections  themselves.  The  per- 
manent organization  of  advisers  and  directors 
to  the  politically  ignorant  voter  will,  of  course, 
have  a  slate  of  candidates  for  nomination,  just 
as  it  provided  a  slate  of  nominees  under  the 
convention  system.  There  may  be  some  in- 
dependent candidates  for  nominations.  Most 
frequently,  however,  these  are  obscure  individ- 
uals who  try  for  a  nomination  on  the  theory 
that  they  are  no  more  unknown  than  the  slate 
113 


Unpopular  Government  in  the  United  States 

candidates.  The  voter's  burden  has  been 
doubled.  Consequently  his  political  ignorance, 
both  at  the  primary  election  for  candidates  and 
at  the  election  itself,  is  probably  greater  than 
it  was  at  the  election  for  ofhce  alone.  At  all 
events,  the  voter  comes  to  the  primaries  (if  he 
comes  at  all)  just  as  ignorant  of  the  personality 
and  qualifications  of  candidates  for  nomination 
as  he  formerly  did  of  the  candidates  for  office. 
His  ignorance  may  be  so  apparent  that  he  does 
not  vote  at  all.  Perhaps  he  votes  only  for  a  few 
names  that  he  happens  to  recognize.  In  either 
case  his  vote  is  negligible.  The  effective  voter 
at  the  primaries  is  the  one  who  votes  for  candi- 
dates for  all  places.  He  must,  however,  as  a 
result  of  his  dense  political  ignorance,  vote 
the  way  he  is  told.  As  usual  the  most  ef- 
fective force  for  telling  him  how  to  vote  is  the 
permanent  organization  of  advisers  and  direct- 
ors to  the  politically  ignorant  voter.  It  is  that 
organization  which  will  most  often  carry  the 
primary  election  which  nominates  candidates 
for  most  of  the  offices.     In  short,  the  extra-legal 

government  will  influence  and  control  the  results 

114 


The  Primaries 


of  the  ordinary  primary  just  as  it  has  influenced 
and  controlled  the  results  of  ordinary  elections. 
It  is  only  in  the  language  of  the  stump  that 
the  primaries  enable  the  people  to  nominate. 
While  an  extra-legal  government  exists  the 
people  can  no  more  nominate  at  primaries  than 
they  can  choose  at  elections.  Such  precisely 
has  been  the  experience  in  Cook  County,  Illi- 
nois. There,  from  the  time  the  primaries  first 
went  into  effect,  the  leaders  of  the  two  prin- 
cipal vote-directing  organizations  have  made 
slates  more  or  less  secretly,  secured  the  most 
favorable  position  for  the  slate  on  the  primary 
ballot,  pushed  the  slate  at  the  primaries,  and 
obtained  the  nomination  in  practically  every 
case  of  the  slate  candidates.  In  primary  elec- 
tions we  have  an  appeal  to  voters  on  matters 
apparently  less  important  and  conspicuous 
than  the  filling  of  the  offices  themselves.  If 
the  vote-directing  organization  can  in  the  long 
run  control  elections  to  a  majority  of  the 
offices,  it  can  certainly  in  the  long  run  con- 
trol the  nominations  for  those  offices  at  the 
primary  election. 

"5 


Unpopular  Government  in  the  United  States 

We  must  not  overlook  one  great  advantage  to 
the  extra-legal  government  in  making  nomina- 
tions at  primaries  instead  of  at  conventions.  In 
the  convention  the  leaders  of  the  extra-legal 
government  were  so  openly  and  publicly  the 
makers  of  nominations  that  they  were  in  a  de- 
gree responsible.  They  had  to  consider  very 
carefully  the  popular  temper  in  giving  each 
candidate  a  place  on  the  ballot.  Under  the 
primaries,  however,  the  result  is,  in  the  language 
of  the  stump,  "the  judgment  of  the  people." 
If,  therefore,  any  black  sheep  slip  into  nomi- 
nations for  obscure  places  it  is  the  fault  of 
the  people,  just  as  it  used  to  be  the  fault  of  the 
people  when  bad  men  were  elected  to  office. 
The  popular  demand,  however,  for  primaries  is 
a  confession  that  elections  did  not  produce  the 
choice  of  the  people.  Before  long,  experience 
with  universal  and  compulsory  primaries  to 
make  nominations  for  long  ballots  will  indicate 
that  they  do  not  produce  nominations  by  the 
people. 

Not  only  is  the  compulsory  primary  for  all 
elective  offices  entirely  ineffective  to  break  up 

ii6 


The  Primaries 


the  power  of  the  extra-legal  government  to 
direct  the  nomination  of  its  loyal  adherents,  but 
in  the  long  run  its  presence  exaggerates  the  very 
condition  which  necessarily  causes  the  existence 
of  a  centrahzed  extra-legal  government  con- 
trolling a  decentralized  legal  government.  That 
condition  is  the  burden  of  political  duties  cast 
upon  the  voter  which  he  will  not  and  very  likely 
cannot  possibly  carry.  It  is  that  which  makes 
him  politically  ignorant  and  forces  him  to  fall 
back  upon  the  assistance  of  the  professional 
political  adviser.  When  the  primaries  double 
the  burden  on  the  voter  they  increase  twofold 
the  necessity  for  permanent  organizations  for 
directing  and  advising  the  politically  ignorant 
voter  how  to  vote.  Consequently,  so  far  from 
disrupting  an  extra-legal  government,  the  uni- 
versal and  compulsory  primary  makes  its  con- 
tinued existence  even  more  certain. 


117 


CHAPTER  VIII 
THE   INITIATIVE   AND    THE   REFERENDUM 

Nicholas  Longworth,  when  congratulated  on 
his  election  to  Congress,  is  reported  to  have 
said:  "Election!  I  wasn't  elected;  I  was 
appointed."^  This  contains  a  very  real  truth. 
As  the  power  of  the  extra-legal  government  has 
increased  it  has  gained  a  large  and  in  some 
instances  predominant  influence  in  our  legis- 
lative bodies  and  particularly  the  state  legisla- 
tures, through  its  power  to  appoint  members 
who  would  be  loyal  to  it.  Once  obtained  this 
influence  may  be  used  to  protect  certain  inter- 
ests from  legislation  which  they  do  not  want, 
but  for  which  there  may  be  a  proper  popular 
demand.  It  may  be  used  also  to  promote 
legislation  which  the  electorate  is  against  or 
would  be  against  if  it  understood  the  situation. 
Wlien  such  a  condition  of  affairs  exists  and 
becomes  widely  known,  we  have  a  demand  for 

'  George Kibbe Turner,  "TheThing  above  theLaw,"  McClure's 
Magazine,  XXXVIII,  575. 


The  Initiative  and  Referendum 

the  initiative  to  compel  the  enactment  of  laws 
which  the  majority  of  the  electorate  wants 
but  which  the  legislature  will  not  pass.  We 
have  also  a  demand  for  the  referendum  to 
veto  acts  which  the  legislature  has  passed 
but  which  the  majority  of  the  electorate  does 
not  want. 

Of  course,  in  extraordinary  and  unusual 
situations,  when  the  electorate  is  organized  and 
led  against  some  attempted  act  of  the  extra- 
legal government,  the  initiative  and  referendum 
may  be  used  to  defeat  and  discomfort  the  latter. 
But  that  is  not  a  normal  situation.  It  is  the 
extraordinary  and  unusual  occurrence.  The 
real  effect  of  the  initiative  and  the  referendum 
on  the  extra-legal  government  cannot  be  de- 
termined with  reference  to  abnormal  circum- 
stances. It  must  be  looked  at  in  connection 
with  normal  everyday  events.  The  usual  and 
normal  situation  is  that  of  political  quiet.  The 
extra-legal  government  governs  from  day  to 
day  and  from  election  to  election.  The  placing 
on  the  ballot  at  any  election  of  a  number  of 
acts  to  be  initiated  or  approved  on  a  referendum 

119 


Unpopular  Government  in  the  United  States 

adds  more  burdens  to  the  already  greatly  over- 
loaded voter.  He  must  now  read  over  the  acts, 
study  their  details,  and  understand  the  ultimate 
effect  or  possibilities  of  certain  clauses.  The 
legislation  to  be  considered  by  the  voter  may  be 
of  relatively  small  importance  to  the  majority  of 
the  voters,  or  the  desire  of  the  majority  for  the 
general  object  may  be  so  great  that  the  means 
are  not  to  be  considered.  The  ballot  may  con- 
tain counter  propositions  and  additional  acts 
upon  the  same  subject.  Some  reformers  might 
present  one  act  and  the  extra-legal  government 
another  on  the  same  subject.  When  these 
occasions  arise,  one  thing  we  may  be  certain  of : 
the  average  voter  will  be  most  densely  ignorant 
of  what  it  is  all  about.  Who,  then,  in  the  usual 
case  wiU  have  the  privilege  of  directing  him  how 
to  vote  ?  Why,  of  course,  the  same  organiza- 
tion that  directs  the  voter  regularly  how  to  cast 
his  ballot  for  candidates  for  office.  The  power 
of  the  extra-legal  government  to  advise  and 
direct  the  politically  ignorant  voter  how  to  vote 
will  be  just  as  effective  in  the  normal  election 
to  carry  or  defeat  an  act  on  an  initiative  or 


The  Initiative  and  Referendum 

referendum  as  it  is  to  place  men  loyal  to  it  in 
the  offices  of  the  legal  government. 

The  initiative  and  the  referendum,  then, 
while  they  may  at  times  give  the  righteous 
a  desirable  advantage,  will  in  normal  condi- 
tions place  in  the  hands  of  the  extra-legal  gov- 
ernment the  opportunity  to  secure  the  passage 
of  undesirable  laws  or  to  defeat  good  ones  and 
to  insist  for  a  time  at  least  that  this  is  "the 
judgment  of  the  people";  just  as  for  years 
they  have  declared  that  when  the  system  of 
frequent  elections  for  many  offices  produced 
undesirable  officeholders,  it  was  the  result  of 
the  will  of  the  people. 


CHAPTER  IX 

THE  RECALL 

What  has  been  said  of  the  initiative  and  the 
referendum  is  almost  precisely  applicable  to  the 
recall. 

The  movement  for  the  recall  began  just  as 
soon  as  it  was  generally  perceived  that  our 
system  of  frequent  elections  to  fill  a  large  num- 
ber of  offices  did  not  prevent  the  extra-legal 
government  from  placing  in  office  men  loyal 
to  it.  The  movement  for  the  recall  is  the 
frankest  admission  that  this  system  of  elections 
has  been  a  failure.  The  real  cause  for  this  fail- 
ure was  the  fact  that  too  much  voting  had 
overloaded  the  voter  and  his  resulting  political 
ignorance  had  delivered  him  into  the  hands  of 
an  organization  which  in  effect  cast  his  ballot 
for  him.  Again,  however,  this  was  entirely 
neglected,  and  the  superficial  and  obvious 
remedy  was  put  forward  of  having  a  new  elec- 
tion whenever  it  was  discovered  that  an 
officeholder  was  objectionable  because  of  his 


The  Recall 


subservience  to  an  extra-legal  government. 
The  statutes,  however,  do  not  undertake  to 
submit  to  the  electorate  the  question  whether 
the  officers  subject  to  the  recall  elections  have 
been  too  subservient  to  the  extra-legal  govern- 
ment and  that  alone.  Instead,  the  voters  may 
cast  their  votes  for  the  recall  of  an  officer  on 
any  ground  they  please. 

If  there  is  an  organized  and  effectively  led 
revolt  against  extra-legal  government,  then 
obviously  the  weapon  of  the  recall  may  be  of 
great  service.  It  will  enable  the  attacking 
party  to  sweep  out  of  office  adherents  of  the 
extra-legal  government  who  would  otherwise 
have  held  until  the  next  election,  when  the  tide 
of  popular  sentiment  in  favor  of  the  attack 
might  have  begun  to  ebb.  But  revolts  are  not 
at  all  frequent.  There  has  always  been  an 
opportunity  at  regular  elections  for  such  move- 
ments through  independent  nominations  by 
petition.  A  revolt  of  any  consequence  would 
have  undertaken  to  use  this  method.  In  spite, 
however,  of  the  opportunity  thus  afforded,  the 

general  revolt  against  extra-legal  government  in 
123 


Unpopular  Government  in  the  United  States 

local  districts  is  the  occurrence  of  a  decade,  if 
not  of  a  generation. 

It  is  the  effect  of  the  recaU  under  normal  cir- 
cumstances, when  no  revolt  against  extra-legal 
government  is  in  progress,  that  must  principally 
concern  us.  At  such  times  the  recall  is  more 
valuable  to  the  extra-legal  government  than  it 
is  to  the  electorate  at  large.  The  recall  is  as 
available  to  the  extra-legal  government  as  it  is 
to  the  electorate  at  large.  In  fact,  the  extra- 
legal government  must  of  necessity  become 
famiHar  with  its  use.  Every  officer  of  the 
dummy  legal  government  must,  therefore,  at  all 
times  act  with  the  knowledge  that  the  extra- 
legal government  may  start  a  recall  election 
against  him.  Imagine  what  this  means  to  the 
host  of  subordinate  officers  that  were  put  in 
apparently  by  the  electorate,  but  of  whom  the 
electorate  never  had  any  knowledge  whatever. 
They  have  no  popular  following.  They  have 
no  money  with  which  to  advise  and  instruct  the 
voters  of  the  character  of  the  fight  that  is  being 
made   against    them.     What   possible    chance 

would  such  officeholders  stand  against  the  per- 

124 


The  Recall 


manent  organization  of  advisers  and  directors 
to  the  ignorant  voter  which  the  extra-legal 
government  controls?  The  recall  under  nor- 
mal, everyday  conditions  would  place  the 
majority  of  officeholders  even  more  completely 
in  the  control  of  the  extra-legal  government 
than  they  are  now. 

The  recall,  if  applied  to  the  judiciary,  would 
in  usual  and  normal  times  operate  to  give  the 
extra-legal  government  the  same  power  over 
the  judges  that  it  would  have  over  other  office- 
holders.' A  judge  is  one  of  the  most  helpless  of 
all  elective  officers.  He  can  run  on  no  platform ; 
he  can  have  no  pohtical  program.  He  cannot 
point  dramatically  to  any  achievements  on  be- 
half of  the  people.  Whether  he  is  a  good  judge 
or  not  is  a  matter  of  expert  opinion  that  only 
a  comparatively  few  persons  are  competent  to 
pass  upon.  His  reputation  can  be  easily  blasted 
by  the  circulation  of  false  statements.  He  may 
even  be  hurt  by  the  performance  of  his  duty  in  a 
particular  case.  His  retention  in  office  at  elec- 
tions is  in  a  great  number  of  instances  purely  a 

» See  post,  chap.  xvii. 

125 


Unpopular  Government  in  the  United  States 

matter  of  accident.  If  he  is  up  at  a  fall  presi- 
dential election,  his  retention  in  ofl&ce  will 
practically  depend  upon  the  success  of  the 
national  party  in  whose  column  his  name 
happens  to  be.  It  will  make  little  difference 
whether  he  has  been  one  of  the  best  judges 
that  the  county  or  state  has  ever  had,  or 
one  of  the  worst.  Elections  place  the  judge 
very  largely  at  the  mercy  of  the  extra-legal 
government.  That  government  may  not  be 
able  to  return  him  to  office,  but  the  judge  knows 
that  without  its  support  his  re-election  will 
become  practically  impossible.  To  give  the 
extra-legal  government  the  opportunity  to  use 
the  recall  upon  a  judge  is  to  hold  above  the 
judge's  head  at  all  times  the  threat  of  an 
extra  election  which  he  is  in  no  wise  prepared 
to  undergo.  Nothing  could  more  clearly  in- 
crease the  power  of  the  extra-legal  government 
over  the  judiciary.  If  the  recall  of  judges  be 
advocated  on  the  ground  that  they  have 
become  subservient  to  the  politocrats,  the 
conditions  which  have  caused  them  to  be- 
come so  wiU  have  been  greatly  increased  by 
226 


The  Recall 


the  very  device  which  is  advocated  as  a  means 
of  ridding  us  of  that  subserviency. 

We  may  conclude,  therefore,  that  there  is  no 
more  danger  to  extra-legal  government  in  the 
recall  than  there  is  in  frequent  elections  and 
independent  nominations  by  petition.  On  the 
other  hand,  the  free  use,  or  freely  threatened 
use,  of  the  recall  by  the  extra-legal  government 
will  give  it  a  power  over  officeholders  and  judges 
greater  than  that  which  it  now  has. 


127 


CHAPTER  X 

INDEPENDENT  MOVEMENTS  AND  THE 
NEW  PARTY 

Independent  movements  have  been  launched 
in  different  locahties  from  time  to  time.  These 
have  been  prompted  by  the  too  open  and  too 
violently  selfish  use  of  power  by  the  extra-legal 
government.  They  have  often  been  tempo- 
rarily successful.  But  they  have  been  available 
only  upon  extraordinary  occasions  and  have 
proved  of  merely  temporary  effect.  In  the 
first  place  they  did  not  develop  any  organization 
of  professional  advisers  and  directors  to  the 
pohtically  ignorant  voter.  They  did  not  con- 
tinuously put  forth  the  effort  to  estabhsh  a 
centraHzed  extra-legal  government  which  the 
condition  of  decentralized  legal  government 
demanded.  Secondly,  the  independent  move- 
ment suffered  under  the  disadvantage  of  op- 
erating in  opposition  to  the  candidates  of  the 
two  great  historical  parties — the  Democratic 

and   the   Republican.     This   was   an   almost 
128 


Independent  Movements 


insuperable  obstacle  when  the  local  state  and 
national  elections  were  held  together. 

One  of  the  important  independent  move- 
ments of  the  last  fifty  years  is  that  which 
brought  into  existence  the  Progressive  party. 
The  spark  which  touched  this  off  was  what  ap- 
peared to  a  large  number  of  voters  to  be  the 
refusal  of  those  who  legally  controlled  the  Re- 
publican National  Convention  to  make  a  nom- 
ination for  president  of  the  United  States  in 
accordance  with  the  express  wishes  of  a  major- 
ity of  the  rank  and  file  of  the  party.  It  was 
in  effect  an  exhibition  of  the  arbitrary  action 
of  the  minority  in  refusing  to  carry  out  the 
expressed  will  of  the  majority.  Those  legally 
in  control  of  the  convention  were  supported 
principally  by  the  delegates  who  had  been 
sent  as  the  result  of  the  action  of  local  politi- 
cal organizations  in  the  states  where  no  pri- 
maries had  been  held.  Those  who  did  not 
legally  control  the  convention  were  supported 
by  the  delegates  who  were  directed  by  the 
majority  of  the  party  electorate  actually  voting 

in  the  primaries,  to  nominate  Mr.  Roosevelt. 

129 


Unpopular  Government  in  the  United  States 

In  short,  a  great  independent  revolt  had  been 
started  in  the  RepubHcan  party  at  the  primaries. 
In  the  convention  the  popular  will  was  directly 
matched  against  the  forces,  similar  in  appear- 
ance, if  not  in  fact  the  same,  to  those  of  the 
usual  extra-legal  government.  Naturally  the 
efforts  of  the  new  party  have  been  expressly 
dedicated  to  the  disrupting  of  extra-legal  gov- 
ernment in  this  country.  For  the  first  time  a 
national  party  has  begun  to  proclaim  the  fact 
that  extra-legal  government  does  exist;  that  it 
can  maintain  and  exercise  its  power  against  the 
will  of  a  majority,  and  that  it  must  be  destroyed. 
These  utterances  are  of  enormous  value,  but 
when  we  look  at  the  platform  of  the  new  party 
for  the  ways  and  means  of  accomplishing  the 
result  the  outlook  is  not  encouraging.  We  find 
the  new  party  approving  of  the  primaries,  the 
initiative,  the  referendum,  and  the  recall  of 
officers  other  than  judges.  These  proposals,  as 
we  have  already  analyzed  them,  hold  out  no 
promise  of  permanently  disrupting  extra-legal 
government.  It  is  true  the  short  ballot  is  ad- 
vocated, but  as  yet  there  seems  to  be  no  clear 

130 


Independent  Movements 


perception  of  the  connection  between  the  long 
ballot,  the  decentralization  of  governmental 
power,  the  poHtical  ignorance  of  the  voter  even 
when  he  is  an  intelligent  man,  and  the  rise  and 
permanent  acquisition  of  governmental  power 
by  the  extra-legal  government.  The  short  bal- 
lot seems  to  be  included  in  the  Progressive 
party's  platform,  not  because  it  embodies  a 
theory  of  government  which  is  entirely  opposed 
to  that  upon  which  our  state  governments  were 
founded  and  have  been  developed,  but  because 
it  is  one  of  several  panaceas  and  because  of  its 
superficial  and  obvious  appeal.  The  Progres- 
sive party  does  not  reveal  itself  as  yet  ready  to 
assume  a  theory  of  government  which  lies  at  the 
basis  of  the  short  ballot  and  which  insists  upon 
the  centralization  of  governmental  power  exer- 
cised in  subordination  to  the  popular  will,  as 
distinguished  from  the  decentralization  of  gov- 
ernmental power  exercised  in  subordination  to 
the  influence  of  an  extra-legal  government  not 
readily  answerable  to  the  popular  will. 

If  our  state  governments  remain  as  they  are 
with  only  such  alterations   as   come  from  a 
131 


Unpopular  Government  in  the  United  States 

shorter  ballot,  the  primary,  the  initiative,  the 
referendum,  and  the  recall,  extra-legal  govern- 
ment will  not  be  eliminated.  The  Progressive 
party  must  then  either  cease  to  exist,  as  so 
many  other  lesser  independent  movements  have 
done,  or  it  must  acquire  an  organization  pre- 
cisely such  as  the  old  parties  have  had.  It 
must  acquire  the  same  multitude  of  legal  vote- 
directing  machines,  the  same  feudal  hierarchy 
of  politocrats,  and  by  this  means  establish  an 
extra-legal  centralized  government  to  rtm  the 
decentraHzed  legal  government.  Whichever 
happens,  the  new  party,  as  the  champion  of  the 
power  of  the  electorate  against  the  power  of  the 
politocrats,  will  have  failed.  The  new  party  is 
indeed  doomed  to  failure  unless  it  can  so  change 
our  theory  of  government  and  induce  the  mak- 
ing of  new  governmental  arrangements  pursu- 
ant to  that  theory,  that  extra-legal  government 
on  its  present  grand  scale  will  no  longer  be 
possible. 


132 


CHAPTER  XI 

THE  SECURITY  OF  EXTRA-LEGAL  UNPOPU- 
LAR GOVERNMENT  BY  POLITOCRATS 
IN  THE  UNITED  STATES 

Extra-legal  unpopular  government  rests  fun- 
damentally upon  the  fact  that  a  few  are  able  to 
cast  the  ballots  of  the  voters  for  them.  This  is 
accomplished  through  the  process  of  advising 
and  directing  the  voter  how  to  vote.  The  op- 
portunity to  do  this  at  all  is  presented  when- 
ever the  voter  is  politically  ignorant  and  still 
insists  upon  voting  with  an  apparent  show  of 
inteUigence.  The  opportunity  to  advise  and 
direct  the  voter  how  to  vote  is  presented  on  a 
large  scale  when  the  entire  electorate,  no  matter 
what  its  average  inteUigence  may  be,  is  made 
politically  ignorant  concerning  a  majority  of  the 
candidates  for  office.  The  decentralization  of 
governmental  power,  as  manifested  in  the 
multiplication  of  elective  offices  and  the  fre- 
quency of  elections,  has  placed  upon  the  voter 
— even  when  he  is  a  most  intelligent  man — 
133 


Unpopular  Government  in  the  United  States 

a  burden  which  he  does  not  and  practically 
cannot  carry.  He  therefore  goes  to  the  polls 
politically  ignorant  and  the  essential  condi- 
tion is  presented  upon  which  the  rise  and 
establishment  of  an  extra-legal  unpopular  gov- 
ernment rests.  It  may  be  observed,  therefore, 
of  all  efforts  to  disrupt  and  destroy  a  system 
of  extra-legal  unpopular  government,  that  so 
long  as  the  assault  upon  it  consists  of  a  more 
frequent  appeal  to  the  electorate  on  occasions 
of  ever-lessening  importance,  the  more  the  as- 
sault will  in  reality  contribute  to  the  condition 
which  makes  the  existence  of  some  extra-legal 
government  unassailable. 

The  growth  and  security  of  extra-legal  un- 
popular government  rests  upon  the  increase  of 
the  political  burdens  upon  the  voter.  Every 
political  theory,  every  governmental  bogey,  and 
every  practical  innovation  which  tends  toward 
the  multiplication  of  elective  offices,  the  fre- 
quency of  elections  and  the  consequent  decen- 
tralization of  the  power  of  government,  whether 
state  or  local,  must  be  advocated  and  encour- 
aged by  the  politocrat.     Every  effort  must  be 

134 


Security  of  Extra-legal  Government 

made  by  him  to  foster  and  maintain  the 
popular  conviction  that  the  centralization  and 
concentration  of  governmental  power  in  the 
hands  of  a  few,  even  though  those  few  hold 
office  as  a  whole  at  the  mere  whim  and  pleasure 
of  a  majority  of  the  electorate,  is  the  real  basis 
of  unpopular  government  and  inimical  to  free 
institutions.  He  must  make  every  effort  to 
foster  and  maintain  the  popular  conviction  that 
the  only  hope  of  popular  government  and  free 
institutions  lies  in  as  many  appeals  to  the  elec- 
torate on  as  many  occasions  as  possible.  This 
idea  may  be  conveyed  in  convincing  and  epi- 
grammatical  form  by  repeating  the  wisdom  that 
the  cure  for  the  ills  of  democracy  is  more 
democracy.  The  electorate  should  never  be 
allowed  to  forget  that  by  reason  of  the  constant 
appeals  to  them  they  are  ruhng,  and  that  what- 
ever happens  they  are  responsible. 

In  short,  the  security  of  unpopular  govern- 
ment hes  in  the  maintaining  of  the  popular 
conviction  that  our  present  constitution  and 
laws  are  sound.  The  bulwark  of  unpopular 
government  in  the  United  States  today  is  the 
135 


Unpopular  Government  in  the  United  States 

man  who  believes  that  our  institutions  are 
fundamentally  satisfactory;  that  in  the  main 
our  scheme  of  government  is  the  best  that  was 
ever  devised  or  can  be  devised;  that  it  is  the 
fault  of  the  electorate  that  bad  men  are  in 
office;  that  the  electorate  at  the  last  election 
put  the  machine  out  of  business,  or  came  near 
it,  and  is  going  to  do  better  the  next  time;  that 
if  the  machine  is  not  disrupted,  then  the  people 
themselves  are  at  fault  and  richly  deserve  what 
they  get;  that  if  any  improvements  are  needed 
they  will  be  found  in  the  more  frequent  appeals 
to  the  electorate  through  such  devices  as  the 
primaries,  the  initiative,  the  referendum,  and 
the  recall.  Extra-legal  unpopular  government 
must  encourage  men  of  this  stamp  and  teach 
these  fundamental  principles  to  its  supporters. 
While  such  men  represent  the  views  of  the 
masses  extra-legal  unpopular  government  will 
be  safe. 

Unpopular  government  in  the  United  States 
will  be  secure  until  our  present  popular  convic- 
tions about  the  science  of  government  are 
reversed  and  popular  and  persistent  opinions 

136 


Security  oj  Extra-legal  Government 

prevail  that  the  ability  of  the  electorate  to  vote 
intelligently  is  limited;  that  the  moment  the 
voter  is  called  upon  to  fill  any  other  than  a  few 
offices  which  wield  great  power  and  are  therefore 
conspicuous  and  important,  he  becomes  pohti- 
cally  ignorant,  even  though  he  be  an  unusually 
intelligent  man;  that  it  makes  no  difference 
that  this  may  be  his  fault,  for  the  fact  remains 
and  will  remain;  that  it  is  this  artificially  stim- 
ulated poHtical  ignorance  of  the  voter  that  de- 
hvers  his  vote  to  a  permanent  organization 
maintained  for  the  purpose  of  directing  him 
how  to  vote;  that  to  prevent  this  artificially 
stimulated  political  ignorance  on  the  part  of  the 
voter  he  must  be  called  upon  to  exercise  such  a 
limited  voting  power  as  he  is  able  to  use  with 
intelhgence.  This  means  that  the  power  of 
government  must  be  centralized  and  concen- 
trated in  the  hands  of  a  few  officeholders  of 
the  legal  government  who  are  prevented  from 
perpetuating  their  power  and  so  estabhshing 
an  unpopular  government  by  being  at  all  times 
subject  to  be  ousted  or  kept  in  office  at  the 
pleasure  of  the  majority  of  the  electorate.  The 
137 


Unpopular  Government  in  the  United  States 

moment  the  real  government,  be  it  legal  or 
extra-legal,  can  be  swept  out  of  office  as  a  whole 
at  a  popular  election  easily  initiated,  which 
makes  the  existence  and  action  of  the  real 
government  a  direct  issue,  the  most  effective 
means  yet  devised  for  preventing  a  real  govern- 
ment from  becoming  unpopular — i.e.,  maintain- 
ing the  selfish  exercise  of  power  in  the  face  of 
popular  disapproval — has  been  found.  When 
these  principles  of  government  are  received  by 
the  masses  with  the  same  conviction  that  they 
now  support  the  theory  of  government  that  a 
minimum  amount  of  power  should  reside  in  any 
one  officer  or  department  of  the  legal  govern- 
ment and  that  appeals  to  the  electorate  should 
be  upon  as  many  matters  and  as  often  as  pos- 
sible, the  doT\Tifall  of  extra-legal  unpopular 
government  will  be  imminent. 


138 


CHAPTER  XII 

THE  MENACE  TO  UNPOPULAR  GOVERNMENT 
OF  THE  COMMISSION  FORM  OF  GOVERN- 
MENT FOR  SMALLER  CITIES 

It  took  a  flood  and  a  hurricane  which  over- 
whelmed a  prosperous  city  to  reverse  the 
popular  convictions  which  lie  at  the  basis  of 
government  in  the  United  States.  In  1900 
Galveston  was  all  but  destroyed  by  the  waters 
of  the  Gulf  rising  during  a  hurricane.  Con- 
fronted with  a  great  emergency  in  which  quick 
and  efficient  action  was  imperative  if  the  city 
was  to  be  restored  at  all,  the  people  abandoned 
the  fear  of  kings  and  of  centralized  govern- 
mental power.  The  entire  municipal  power 
of  government,  executive  and  legislative,  was 
vested  in  a  single  board  of  five  commission- 
ers. These  were  both  the  legislature  and  the 
executive.  They  made  the  ordinances  and 
wielded  the  executive  power  through  subordi- 
nate officers  appointed  by  them.  The  govern- 
mental principle  which  was  thus  applied  in  the 
139 


Unpopular  Government  in  the  United  States 

commission  plan  is  the  concentration  of  govern- 
mental power  by  the  union  of  the  legislative  and 
executive  functions  of  government  in  the  hands 
of  a  few^  who  are  controlled  and  prevented  from 
becoming  an  unpopular  government  because 
they  are  subject  to  the  electorate  through  elec- 
tions at  frequent  intervals.  The  office  of  com- 
missioner was  made  conspicuous  and  elections 
interesting.  The  population  of  Galveston  was 
about  40,000.  Hence  the  entire  city  was  not  so 
large  but  that  a  candidate  might  be  personally 
known  with  a  fair  degree  of  ease  by  the  electo- 
rate, and  with  the  least  possible  expense  make 
a  personal  canvass.     It  was,  in  short,  a  wieldy 

'  The  question  is  frequently  put  whether  it  is  better  to  have  five 
commissioners  and  let  them  choose  their  own  chairman  as  a  mere 
presiding  officer,  or  to  provide  that  one  commissioner  specially 
elected  shall  be  chairman,  with  special  executive  and  administra- 
tive powers.  The  two  plans  represent  simply  a  difference  in  the 
degree  with  which  the  executive  and  legislative  powers  are  united. 
If  one  commissioner  is  elected  specially  as  a  chairman  or  a  mayor, 
with  administrative  and  executive  duties,  and  the  other  commis- 
sioners are  merely  an  advisory  board,  you  have  a  certain  degree  of 
separation  of  the  executive  and  legislative  functions.  The  chair- 
man or  mayor  must  in  that  case  be  elected  at  large  from  the  city. 
His  office  will  be  so  conspicuous  and  important  as  to  overshadow 
the  offices  of  the  commissioners,  and  there  will  be  the  probability 
of  deadlocks  between  the  executive  and  the  commissioners 
exercising  the  legislative  power.     If,  on  the  other  hand,  all  the 

140 


The  Commission  Form  of  Government 

district.  Hence  the  coming  forward  of  candi- 
dates was  increased  to  the  maximum,  and  the 
need  for  a  vote-directing  machine  practically 
ehminated.  The  maximum  amount  of  thought 
and  intelligence  was  obtained  from  the  voter 
because  his  attention  was  concentrated  on  fill- 
ing a  few  important  offices.  Excessive  and  ar- 
tificial political  ignorance  was  thus  diminished. 
The  ultimate  result  was  a  real  expression  of  the 
will  of  the  electorate  through  the  representa- 
tives chosen  and  full  power  in  those  repre- 
sentatives to  enact  that  will  into  law  and  also 
enforce  the  law  thus  made.  In  actual  opera- 
tion the  results  of  applying  this  principle  left 

commissioners  are  equally  possessed  of  the  executive  and  legisla- 
tive power,  there  is  a  complete  union  of  both  functions.  The 
majority  of  the  commission  then  becomes  entirely  responsible, 
not  only  for  the  making,  but  for  the  enforcement,  of  the  laws  and 
administrative  measures.  So  far  as  the  disrupting  of  extra-legal 
government  in  cities  the  size  of  Galveston  is  concerned,  it  is 
beUeved  not  to  make  any  material  difference  which  plan  be 
adopted.  The  surer  course  is  that  of  making  the  majority  of  all 
the  commissioners  responsible  for  the  exercise  of  the  entire  legis- 
lative and  executive  powers. 

It  is  entirely  in  accordance  with  the  principle  of  the  union  of 
executive  and  legislative  powers  in  the  commission  that  it  hire  a 
professional  municipal  administrator  to  hold  ofllice  at  the  pleasure 
of  the  commission  and  delegate  to  him  such  executive  duties  and 
legislative  power,  subject  always  to  the  control  of  the  commission, 

as  the  commission  sees  fit. 

141 


Unpopular  Government  in  the  United  States 

little  to  be  desired  in  Galveston.  Here  are 
the  comments  of  a  keen  observer/  writing 
in  1911: 

To  Americans  accustomed  to  ineflficiency  in  public 
ofl&ce  as  contrasted  with  private  enterprise,  the  story  of 
the  achievements  of  this  Commission  reads  Hke  a 
romance.  Unhampered  by  checks  and  balances  and 
legal  red-tape,  the  Commission  reorganized  the  city 
government,  restored  the  city  property,  planned  and 
financed  and  built  the  great  sea-wall  that  now  bars  out 
the  sea,  raised  the  ground  level  of  the  city,  and,  withal, 
reduced  the  tax-rate  and  the  debt!  The  annual  run- 
ning expenses  of  the  city  were  decreased  one-third. 
The  new  government  displayed  foresight,  intelligence, 
and  dispatch.  It  appeared  sensitive  to  that  public 
clamor  which  the  average  politician  considers  so 
needless. 

There  was  striking  change  in  the  attitude  of  the 
pubHc  toward  the  doings  at  City  Hall.  The  people 
began  to  "take  an  interest"  in  their  common  property, 
to  discuss  the  doings  of  the  Commission  on  street 
corners,  to  have  "civic  pride"  (since  there  was  now  at 
last  something  to  be  proud  of),  to  criticize  or  applaud 
the  work  of  their  servants.  They  seemed  to  have 
actually  a  proprietory  interest  in  the  government! 
Amid  this  widespread  discussion  the  influence  of  the 

'  Richard  S.  Childs,  Short-Ballot  Principles,  pp.  66-67. 
142 


The  Commission  Form  of  Government 

politicians  of  the  town  was  swamped  and  counted  for 
only  its  true  numerical  strength. 

Now  every  American  city  has  its  spells  of  good 
government — the  reactions  that  follow  orgies  of  cor- 
ruption and  scandal — and  the  fact  that  the  new 
Galveston  government  saved  money  is  not  in  itself 
significant.  The  vital  difference  is  that  these  good  ad- 
ministrators in  Galveston,  without  building  up  personal 
"machines"  or  intrenching  themselves  in  power  by 
the  usual  army-like  methods  of  political  organization, 
were  able  to  secure  re-election  again  and  again.  They 
won  favor  by  serving  all  the  people  well.  They  did 
their  work  in  the  spot-light  of  public  scrutiny,  where 
every  citizen  could  see  and  appreciate  and  applaud. 

Unless,  however,  the  fundamental  principles 
at  the  basis  of  government  by  commission  are 
observed  and  appHed,  there  can  be  much  appar- 
ent commission  form  of  government  for  cities 
which  will  not  in  any  way  militate  against  extra- 
legal unpopular  government. 

If,  for  instance,  a  municipal  government  by 
commission  is  planted  in  a  territory  where 
several  other  municipal  governments  are  also 
operating,  each  with  a  long  hst  of  elective 
officers,  very  little  has  been  accomplished 
143 


Unpopular  Government  in  the  United  States 

toward  that  centralization  of  governmental 
power  in  a  few  commissioners  which  tends  to 
ehminate  extra-legal  government.  Each  of  the 
municipal  governments  operating  in  the  same 
territory  will  divide  the  entire  local  govern- 
mental power  among  them.  The  decentrali- 
zation of  governmental  power  will  still  exist  in 
exaggerated  form  and  the  political  ignorance 
of  the  voter  must  still  be  such  that  he  will 
need  to  be  advised  and  directed  how  to  vote, 
and  the  professional  adviser  and  director  to  the 
poHtically  ignorant  voter  will  still  continue  to 
satisfy  that  need.  Once  the  professional  ad- 
viser and  director  to  the  politically  ignorant 
voter  is  retained  in  the  district  where  the  com- 
mission form  of  government  operates,  he  will 
begin  to  exercise  an  influence  in  the  nomination 
and  selection  of  the  commissioners.  Extra- 
legal government  as  conducted  by  him  may  even 
capture  a  majority  of  the  commissioners  and  use 
the  great  governmental  power  vested  in  them  in 
a  scandalous  manner.  The  present  situation  in 
Chicago  well  illustrates  this  danger.    There  the 

municipal  government  is  very  highly  central- 

144 


The  Commission  Form  of  Government 

ized.  The  voter  casts  his  ballot  only  for  a 
mayor  every  four  years,  a  city  clerk  and  the 
city  treasurer  every  two  years  and  two  alder- 
men from  each  of  the  35  wards — one  alderman 
being  selected  from  each  ward  every  year. 
The  other  administrative  officers  not  under 
civil  service  are  appointed  by  the  mayor  with 
the  consent  of  the  council.  If  Chicago  were 
the  only  local  government  in  the  territory 
which  it  occupies  it  would  be  a  fair  type  of 
responsible  city  government  wielding  a  highly 
centrahzed  governmental  power.  Machine  poli- 
tics would  thrive  only  in  the  districts  where  the 
majority  of  the  voters  were  iUiterate  and  where 
corrupt  and  illegal  voting  was  practiced  on  a 
considerable  scale.  But  operating  in  the  same 
territory  with  the  city  of  Chicago  is  the  Sani- 
tary District  with  9  trustees,  and  Cook  County 
with  73  elective  officers.  It  is  the  long  ballot 
for  Cook  County  which  causes  the  densest 
pohtical  ignorance  on  the  part  of  the  voter 
and  makes  the  existence  of  the  professional 
adviser  and  director  of  the  politically  ignorant 
voter  necessary  and  therefore  the  existence 
us 


Unpopular  Government  in  the  United  States 

of  extra-legal  government  certain  and  perma- 
nent. Such  an  extra-legal  government,  when 
once  established,  naturally  exerts  a  great  in- 
fluence even  in  city  elections.  If  the  two 
principal  party  vote-directing  machines  agree 
to  divide  the  city  and  county  governments 
between  them  and  each  helps  the  other  to 
appoint  those  who  are  to  fill  the  legal  offices 
in  that  government  which  it  is  agreed  each 
shall  control,  the  power  of  extra-legal  govern- 
ment in  the  city  will  be  very  great  indeed. 
In  the  same  way,  if  a  commission  form  of 
government  be  provided  for  smaller  cities 
which  must  divide  governmental  power  with 
a  township  government,  a  county  government, 
and  a  drainage  or  a  levee  district,  aU  operating 
in  the  same  territory  and  aU  having  a  con- 
siderable list  of  elective  ofi&cers,  there  is  Httle 
hope  for  a  real  trial  of  the  effect  of  the  con- 
centration of  governmental  power  in  a  few 
elective  offices  to  disrupt  extra-legal  govern- 
ment. It  is  of  the  utmost  importance  to  the 
success  of  the  commission  form  of  government 

for  smaller  cities  that  such  government  be  the 

146 


The  Commission  Form  of  Government 

only  local  government  operating  in  the  terri- 
tory occupied  by  the  city. 

In  some  cases,  however,  it  is  necessary  that 
municipal  corporations  with  special  powers  and 
functions  and  collecting  taxes  from  a  special 
district  for  a  special  purpose  should  occupy 
territory  in  which  several  other  units  of  muni- 
cipal government  operate.  For  instance,  the 
Sanitary  District  in  Cook  County  properly 
levies  taxes  upon  property  in  the  city  of  Chi- 
cago and  in  part  of  Cook  County,  and  builds  a 
canal  running  through  Cook  County  and  Will 
County.  How  is  it  possible  to  avoid  having  the 
commissioners  of  such  a  sanitary  district  elected 
from  the  district  where  its  revenues  are  ob- 
tained? The  answer  is  very  simple.  Such 
commissioners  should  be  appointed  by  the  dif- 
ferent municipal  units  of  government  occup3dng 
the  territory  included  in  the  sanitary  district. 
The  city  of  Chicago,  of  course,  should  appoint 
the  majority  of  the  commissioners.  The  muni- 
cipal governments  outside  the  city  of  Chicago 
should  be  combined  together  in  groups  and  the 
legislative  bodies  of  the  municipahties  in  each 
147 


Unpopular  Government  in  the  United  States 

group  be  given  a  voice  in  the  selection  of  com- 
missioners for  the  Sanitary  District.  The  same 
principle  of  appointment  may  be  adopted  when- 
ever a  special  board  with  special  functions  is  to 
occupy  territory  which  includes  several  units  of 
local  government. 

The  effectiveness  of  the  commission  form  of 
government  for  cities  to  oust  extra-legal  govern- 
ment requires  the  election  of  each  commissioner 
from  a  wieldy  district,  i.e.,  one  not  so  large  but 
that  the  candidate  who  is  willing  to  run  may  be 
known  with  a  fair  degree  of  ease  by  the  electo- 
rate and  be  able  with  the  least  expense  to  make 
a  personal  canvass.^  The  supposed  advantage 
of  electing  commissioners  at  large  from  an  un- 
wieldy district  is  that  this  method  insures  the 
candidacy  and  election  of  men  prominent  in  the 
entire  district  and  hence  more  fit  to  hold  office. 
But  this  is  precisely  what  it  does  not  do.  It  is 
true  such  a  plan  demands  candidates  with  a 
wide  general  reputation  in  the  whole  district. 
But   such    candidates   do   not   come  forward 

'  For  a  further  exposition  of  a  wieldy  district  see  Richard  S. 

Childs,  Short-Ballot  Principles,  pp.  51-58. 

148 


The  Commission  Form  of  Government 

simply  because  the  method  of  election  suggests 
that  such  candidates  should  appear.  Men  with 
wide  reputations  in  a  large  district  are  almost 
certain  to  be  occupying  offices  of  greater  im- 
portance in  the  state  and  federal  governments, 
or  else  they  are  not  available  at  all  for  the 
holding  of  public  office.  The  leading  citizen 
will  not  as  a  rule  be  a  candidate  for  a  position 
in  the  municipal  government.  The  available 
candidates  are  almost  sure  in  the  long  run  to 
be  men  whose  reputations  are  confined  to  some 
district  of  the  larger  community.  When  they 
run  for  election  in  a  district  which  stretches 
beyond  the  zone  of  their  personal  influence  and 
reputation,  some  machinery  for  enlightening  the 
voters'  ignorance  as  to  who  they  are  and  what 
they  stand  for  must  be  devised.  This  means 
that  the  candidate  must  have  money  and  back- 
ing. Those  requirements  may  seriously  limit 
the  number  of  candidates  and  therefore  the 
choice  of  the  voter.  Furthermore,  in  pro- 
moting slates  of  candidates  care  will  usually  be 
taken  to  select  men  with  reference  to  particular 

districts  in  the  community  at  large,  so  that  each 
149 


Unpopular  Government  in  the  United  States 

district  will  feel  that  it  has  a  representative  on 
the  ticket.  Thus  a  provision  for  the  election  of 
commissioners  at  large  from  an  unwieldy  dis- 
trict is  Hkely  to  relapse  in  practice  into  the 
presentation  of  candidates  representing  small 
districts,  each  with  a  local  reputation  in  his 
own  district.  This  becomes  in  substance  an 
election  of  commissioners  from  districts  and 
yet  the  range  of  choice  by  the  voter  resulting 
from  the  coming  forward  of  candidates  wiU  be 
very  much  restricted  because  of  the  expense  of 
making  a  canvass  in  the  unwieldy  district  and 
the  necessity  for  an  organized  support.  Candi- 
dates who  are  successful  in  being  elected  from 
the  unwieldy  district  are  likely  to  be  beholden 
to  an  organization,  whether  it  be  temporary  or 
permanent,  which  has  aided  them  in  the  elec- 
tion. A  system  of  electing  commissioners  at 
large  from  an  unwieldy  district  in  a  greater  or 
less  degree  produces  a  condition  which  tends  to 
keep  ahve  the  extra-legal  government.  On  the 
other  hand,  with  elections  in  wieldy  districts 
the  number  of  candidates  who  come  forward  is 
the  largest  possible.     The  choice  of  the  voter 

ISO 


The  Commission  Form  of  Government 

is,  therefore,  the  widest.  Each  candidate  may 
become  most  easily  personally  known  to  the 
electorate.  The  sharp  contest  between  indi- 
viduals in  a  small  district  is  always  peculiarly 
enlightening  to  the  electorate  and  stimulating  to 
his  interest  in  pohtical  matters.  The  expense 
of  a  canvass  may,  therefore,  be  reduced  without 
lessening  the  amount  of  knowledge  which  the 
voter  will  obtain  regarding  issues  and  can- 
didates. The  services  of  an  extensive  organi- 
zation for  the  purpose  of  directing  the  poHtically 
ignorant  voter  who  to  vote  for  would  naturally 
give  way  to  organizations  for  dispensing  actual 
knowledge  concerning  candidates  and  condi- 
tions. The  services  of  a  highly  developed  and 
permanent  machine  designed  to  direct  the  po- 
Utically  ignorant  how  to  vote  must  become  of 
the  least  possible  value. 

The  practice  of  the  principle  of  selecting  com- 
missioners from  wdeldy  districts  may  take  sev- 
eral forms,  depending  largely  upon  the  size  of 
the  electorate. 

If  the  whole  city  is  not  more  than  a  wieldy 
district  in  itself,  then  of  course  the  election  of 


Unpopular  Government  in  the  United  States 

all  the  commissioners  at  large  is  in  accordance 
with  the  sound  principle  announced.  Such  elec- 
tion may  very  properly  be  according  to  any  one 
of  several  plans. 

First:  The  candidates  to  the  number  of  com- 
missioners to  be  selected  receiving  the  highest 
vote  at  a  single  election  may  be  declared 
elected,  although  none  receive  an  actual  ma- 
jority of  the  votes  cast.  This  is  the  simplest 
method.  It  is  the  one  in  use  at  Galveston, 
with  a  population  of  about  40,000,  and  seems  to 
have  given  satisfaction. 

Second:  The  commissioners  elected  at  large 
may  be  required  to  receive  an  actual  majority. 
If  there  are  more  than  two  candidates  for  each 
place,  this  may  be  secured  at  a  single  election  by 
the  voters  marking  their  first  and  other  choices 
for  each  of  the  places  to  be  filled,  so  that  if  no 
election  is  had  by  a  majority  according  to  the 
first  choice  of  the  voters,  the  second  and  other 
choices  may  be  used  to  indicate  which  ones 
receive  an  actual  majority.  Or  a  second  elec- 
tion may  be  held  at  which  only  candidates  in 
double  the  number  of  places  to  be  filled  who 
152 


The  Commission  Form  of  Government 

have  received  the  highest  number  of  votes  at  the 
first  election  are  placed  upon  the  final  ballot. 
The  second  election  may  be  required  even 
though  candidates  receiving  the  highest  votes 
at  the  first  election  actually  receive  a  majority. 
This  last  is  the  plan  adopted,  apparently  with 
good  results,  in  Des  Moines,  Iowa/ 

Third:  Then  there  is  the  Hare  plan  of  pro- 
portional representation  and  the  single  trans- 
ferable vote.^  To  insure  an  election  a  candidate 
need  only  obtain  a  "quota"  of  the  votes  cast 
— i.e.,  that  number  of  votes  which  can  be  ob- 
tained by  the  number  of  candidates  equal  to 
the  number  of  places  to  be  filled,  but  by  no  more. 
Thus  if  the  electorate  number  5,000  and  there 
are  5  places  to  be  filled,  the  "quota"  or  number 
of  votes  required  for  an  election  would  be  834. 
Five  persons  could  receive  this  number  of 
votes,  but  the  sixth  candidate  could  not  do  so. 

'  John  J.  Hamilton,  Dethronement  of  the  City  Boss,  pp.  15S-168. 

*  See  Encyclopedia  Brittanica,  nth  ed.,  XXIII,  115  (from 
which  the  description  in  the  text  is  largely  taken);  Richard  S. 
Childs,  Short-Ballot  Principles,  p.  58;  Ramsay  Muir,  Peers  and 
Bureaucrats,  pp.  236-39;  C.  G.  Hoag,  "The  Representative 
Council  Plan  of  City  Government,"  The  American  City,  April, 
1913- 

IS3 


Unpopular  Government  in  the  United  States 

Each  voter  is  allowed  to  indicate  his  first,  sec- 
ond, third,  and  other  choices,  but  can  indicate 
only  one  first  choice  and  one  second  choice, 
etc.  At  the  first  count  only  first  choices  are 
reckoned  and  the  candidates  who  have  received 
a  "quota"  or  more  according  to  first  choices  are 
declared  elected.  If  all  the  places  have  not 
then  been  filled  up,  the  surplus  votes  of  those 
candidates  who  have  received  more  than  the 
"quota"  are  transferred  according  to  the  names 
marked  (2)  on  them.  If  these  transfers  do  not 
bring  the  requisite  number  of  candidates  up  to 
the  "quota,"  the  lowest  candidate  is  eUminated 
and  his  votes  transferred  according  to  the  next 
preference,  and  so  on  until  aU  the  places  are 
filled.  The  object  of  this  plan  is  to  give  repre- 
sentation to  minorities  or  to  groups  less  than  a 
majority. 

So  far  as  the  disruption  of  extra-legal  govern- 
ment by  pohtocrats  is  concerned,  it  is  doubtful 
if  it  makes  any  difference  which  of  the  above 
plans  of  election  be  adopted  in  commission- 
governed  municipahties  which  as  a  whole  con- 
stitute only  a  single  wieldy  district  of,  let  us 

154 


The  Commission  Form  of  Government 

say,    not   to   exceed   6,000   male   voters   and 
50,000  inhabitants. 

Suppose  now  the  municipahty  be  larger  than 
a  single  wieldy  district,  but  still  small  enough  so 
that  it  is  very  plainly  a  unit  in  its  interests  and 
collective  activities — ^let  us  say  a  city  with  not 
to  exceed  25,000  male  voters  and  a  population 
of  not  more  than  1 50,000.  Here  there  will  be 
a  distinct  danger  in  electing  commissioners  at 
large  at  a  single  election  at  which  are  chosen 
those  who  obtain  the  highest  votes,  even  though 
less  than  a  majority.  If  the  choice  is  to  be  by 
a  plurality  at  a  single  election  the  municipality 
should  be  divided  into  wards  with  a  single  com- 
missioner elected  from  each,  but  no  candidate 
should  be  required  to  reside  in  the  ward  where 
he  stands  for  election.  The  Hare  plan  is  en- 
tirely available  and  consistent  with  the  choice 
of  commissioners  from  wieldy  districts.  In 
Des  Moines,  Iowa,  with  a  population  of  about 
86,000,  the  double  election  plan  seems  to  have 
been  used  with  success.  This  may  also  be  re- 
garded as  consistent  in  a  way  with  the  election 
of  commissioners  from  wieldy  districts.    True, 


Unpopular  Government  in  the  United  States 

a  single  district  with  a  population  of  80,000 
might  be  regarded  as  unwieldy  for  the  purpose 
of  a  single  election.  But  the  double  election 
secures  the  same  education  for  the  electorate 
that  the  voter  would  obtain  in  a  single  election 
in  a  district  one-half  as  large.  Hence  a  wieldy 
district  having  a  double  election  can  be  con- 
siderably larger  than  a  wieldy  district  having  a 
single  election. 

Suppose,  however,  that  the  municipality  be 
large  enough  to  be  readily  divided  into  as  many 
wieldy  districts  as  there  are  commissioners  to 
the  number  of  from  five  to  nine.  For  instance, 
let  us  assume  a  city  of  to  exceed  25,000  male 
voters  and  a  population  exceeding  150,000. 
Here  the  district  is  too  unwieldy  for  the  elec- 
tion at  large  of  those  candidates  receiving  the 
highest  votes  at  a  single  election.  It  may  be 
doubted  whether  the  double  election  wiU  pro- 
duce satisfactory  results  in  the  way  of  securing 
a  really  intelligent  vote.  We  have  probably 
come  to  a  situation  where  the  principle  of 
electing  commissioners  from  wieldy  districts 
requires  either  a  division  of  the  city  into  wards 
156 


The  Commission  Form  of  Government 

with  a  commissioner  elected  from  each,  or  else 
the  election  at  large  of  all  the  commissioners 
by  the  Hare  plan,  in  which  only  a  "quota"  of 
votes  is  required  for  a  choice.  The  advan- 
tage which  the  Hare  plan  has  of  permitting  the 
candidates  for  commissioner  to  come  from  any 
part  of  the  city  can  be  duphcated  to  some 
extent  in  the  ward  plan  by  not  requiring  any 
residence  by  candidates  in  the  ward  of  the  city 
where  they  stand  for  election.  Under  either 
arrangement  candidates  will  in  all  probabihty 
come  from  particular  districts  and  locaHties 
where  their  strength  Hes. 

It  is  no  part  of  the  writer's  plan  to  discuss 
at  length  the  comparative  merits  of  the  system 
of  election  from  wieldy  geographical  districts 
and  wieldy  "  quotas."  Each  has  its  advantages 
and  disadvantages.  The  wieldy  geographical 
district  has  the  advantage  of  presenting  an 
issue  of  extreme  simplicity  to  the  voter  and 
inducing  interest  in  it  by  the  dramatic  element 
of  personal  contest.  The  field  in  which  the 
candidates  contest  being  limited,  there  is  more 
concentrated  work  upon  the  education  of  the 

157 


Unpopular  Government  in  the  United  States 

electorate  and  the  electorate  focuses  its  atten- 
tion. It  is  not  so  clearly  the  fact  that  in  a 
municipal  election  a  large  minority  may  be 
wholly  unrepresented  as  it  might  be  in  elec- 
tions to  a  national  legislative  body.  The  Hare 
plan  insures  minority  representation,  or  rather 
representation  of  different  groups  throughout 
the  district.  It,  however,  departs  from  a  desir- 
able simphcity  in  voting  and  vote-counting.  It 
tends  to  ehminate  the  sharpness  of  personal 
contest  between  candidates.  Under  the  Hare 
plan  candidates  wiU  go  on  a  still  hunt  all  over 
the  district  for  a  "quota"  and  bid  to  various 
classes  and  cUques  in  the  municipality  for  first 
and  second  choices.  This  develops  what  is 
called  "minority  thinking"  and  "particularist 
politics."  The  candidates  do  not  run  against 
each  other  so  much  as  they  dodge  in  and  out 
about  each  other.  This  also  tends  to  puzzle 
the  voter,  confuse  the  issues,  and  achieve 
results  which  are  unexpected.  The  test  of 
the  Hare  plan  in  cities  of  over  1 50,000  inhabit- 
ants in  the  United  States  is,  it  is  beheved,  stiU 

to  be  made. 

is8 


The  Commission  Form  of  Government 

If  the  principles  of  the  commission  form  of 
government  be  applied  faithfully  and  com- 
pletely, there  is  no  doubt  that  extra-legal  gov- 
ernment in  its  present  violent  form  must  go. 
The  voter's  duty  will  be  simple  and  he  can  per- 
form it  with  the  maximum  amount  of  intelli- 
gence. The  function  of  the  electorate  in  voting 
is  vital  because  it  confers  the  whole  power  of  the 
local  government  upon  a  body  which  is  directly 
responsible  to  the  electorate.  What  place, 
then,  is  there  for  the  professional  adviser  and 
director  to  the  pohtically  ignorant  voter? 
None!  There  is  no  such  poHtical  ignorance  as 
calls  for  a  director  and  adviser.  The  voter 
needs  only  enhghtenment  as  to  which  of  two 
honest  and  fairly  efficient  men  has  a  program 
which  the  voter  on  the  whole  favors.  The 
voter  is  seeking  information  of  a  highly  organ- 
ized sort.  He  can  obtain  that  only  by  the 
use  of  his  mind  and  a  consideration  of  the 
promises  and  programs  of  the  candidates.  The 
candidates  now  must  make  an  appeal  to  the 
voter's  inteUigence.  What,  then,  is  the  need 
of    the   present-day   extra-legal   government? 

159 


Unpopular  Government  in  the  United  States 

Of  course,  parties  and  party  organizations  will 
spring  up,  but  they  will  cease  to  be  mere 
machines  for  directing  the  ignorant  voter  how 
to  cast  his  ballot.  Instead,  they  will  become 
instruments  for  disseminating  propaganda  on 
social,  economic,  and  governmental  issues. 

Once  the  extra-legal  government  is  eliminated 
by  the  concentration  of  governmental  power  in 
the  hands  of  a  few,  each  of  whom  is  elected 
to  office  from  a  wieldy  district  or  by  a  wieldy 
"quota,"  the  electorate  may  with  perfect  safety 
secure  control  of  its  representatives  in  a  variety 
of  ways.  It  may  insist  upon  the  recall,  the 
initiative,  and  the  referendum.  It  is  the  pro- 
motion of  these  expedients  while  the  ballot  is 
stiU  left  as  long  as  at  present  and  the  govern- 
mental power  decentralized  as  it  now  is  that 
tends  to  promote  the  existence  and  security  of 
extra-legal  unpopular  government.  With  irre- 
sponsible extra-legal  government  replaced  by 
a  responsible  legal  government  subject  to  fre- 
quent elections,  one  might  hazard  the  guess 
that  neither  the  recall,  the  initiative,  nor  the 
referendum  would  be  much  used.    The  prima- 

i6o 


The  Commission  Form  of  Government 

ries  would  be  utterly  out  of  place.  No  party 
names  would  appear  on  any  ballot.  In  theory 
every  individual  legally  qualified  for  office 
would  have  the  privilege  of  running  at  an  elec- 
tion. Individuals  should  be  allowed  to  put 
themselves  up.  To  discourage  the  running  of 
irresponsible  persons  who  have  no  real  chance 
of  election  a  sum  should  be  forfeited  by  all  can- 
didates who  do  not  receive  a  certain  percentage 
of  the  vote  cast.  Parties  with  principles  and 
programs  would  naturally  be  the  only  ones 
which  would  have  any  standing.  It  is  highly 
improbable  that  any  such  parties  would  exist 
for  municipal  elections.  If  they  did,  they 
should  be  left  free  to  run  their  affairs  in  their 
own  way,  since  their  candidates  must  always 
compete  with  individuals  who  wish  to  come 
forward  in  opposition. 


i6i 


CHAPTER  XIII 

THE  PRINCIPLE  OF  THE  COMMISSION  FORM 

OF  GOVERNMENT  APPLIED  TO  THE 

LARGER  CITIES 

If  the  city  be  a  larger  one,  with  100,000  male 
voters  and  upward,  and  a  population  of  700,000 
to  1,000,000  and  upward,  its  government  by  a 
small  commission,  each  member  of  which  is 
elected  from  a  wieldy  district,  or  by  a  wieldy 
"quota"  under  the  Hare  plan,  becomes  impos- 
sible. When  districts  begin  to  have  more  than 
6,000  male  voters  and  a  population  of  more  than 
50,000,  or  the  "quotas"  are  over  6,000  male 
voters,  they  are  probably  no  longer  wieldy. 
Yet  a  commission  of  16  and  upward  is  no  longer 
a  body  which  can  exercise  legislative  and  execu- 
tive power  in  a  convenient  manner,  like  a  board 
of  5,  or  even  9.  The  problem  of  the  appHcation 
of  the  principles  of  the  commission  form  of  gov- 
ernment to  the  larger  cities  is  therefore  this: 
How  can  districts  or  "quotas"  be  kept  wieldy 

and  the  city  at  the  same  time  be  governed  by  a 
162 


Commission  Government  in  Larger  Cities 

small  commission  having  both  legislative  and 
executive  powers? 

One  solution  of  the  problem  is  as  follows: 
The  control  of  the  entire  executive  and  legisla- 
tive power  of  the  municipality  should  be  vested 
in  the  municipal  council.  This  should  be  com- 
posed of  as  many  members  as  there  are  wieldy 
districts  or  wieldy  "  quotas"  in  the  municipahty. 
Taking  3,000  voters  as  making  up  a  wieldy  dis- 
trict or  "quota,"  this  would  give  a  city  of 
100,000  male  voters  a  council  of  33  and  a  city 
of  300,000  male  voters  a  council  of  100.  This 
last  might  be  reduced  to  50  if  the  maximum  of 
6,000  male  voters  be  taken  as  the  measure  of  a 
wieldy  district  or  "  quota."  This  council  should 
then  appoint  the  mayor  and  perhaps,  with  the 
mayor's  approval,  the  heads  of  the  depart- 
ments, all  to  hold  office  at  the  pleasure  of  the 
council.^  The  mayor  and  his  heads  of  depart- 
ments should  then  form  a  governing  commission 
or  board  with  such  executive  and  legislative 
powers  as  might  be  conferred  by  ordinances 

'  See  Richard  S.  Childs,  "The  Theory  of  the  New  Controlled- 
Executive  Plan,"  National  Municipal  Revie-w,  II,  76  (January, 
1913);  C.  G.  Hoag,  "The  Representative  Plan  of  Government," 
The  American  City,  April,  1913. 

163 


Unpopular  Government  in  the  United  States 

passed  by  the  council  and  subject  at  all  times 
to  the  control  of  the  council.  Such  a  scheme 
would  retain  the  system  of  electing  representa- 
tives from  wieldy  districts.  There  would  rest 
upon  them  full  responsibility  for  the  exercise  of 
the  legislative  and  executive  power.  Yet  they 
would  be  left  free  to  delegate  executive  power 
and  some  legislative  power  to  a  commission  of 
administrators  whose  whole  business  it  was  to 
serve  the  municipal  government.  Such  a  com- 
mission might  be  composed  of  the  leaders  of  the 
majority  of  the  council  or  of  expert  municipal 
managers  brought  from  any  part  of  the  world,  or 
both.  The  council  should  be  left  free  to  choose 
what  method  it  would  adopt. 

A  plan  of  government  for  our  larger  cities 
frequently  adopted  is  this :  Single  aldermen  are 
elected  from  each  wieldy  district  in  the  munici- 
paUty.  All  the  aldermen  thus  selected  form 
a  city  council  which  exercises  the  legislative 
power.  The  mayor  is  elected  at  large.  He 
presides  over  the  city  council  and,  with  the 
heads  of  his  executive  departments  who  hold  at 

his  pleasure,  wields  the  entire  executive  power. 

164 


Commission  Government  in  Larger  Cities 

The  new  Cleveland  charter  gives  the  depart- 
ment heads  seats  in  the  council  with  the  right  to 
address  that  body.  There  is  here  a  proximity 
of  the  executive  and  legislative  power,  rather 
than  a  real  union  of  it.  Whatever  union  there 
may  be  is  largely  on  the  side  of  giving  the  ex- 
ecutive a  position  in  the  dehberations  of  the 
legislative  body.  The  council  has  no  function 
in  the  actual  exercise  of  the  executive  power. 
The  entire  executive  power  is  really  concen- 
trated in  a  single  individual  elected  at  large 
and  holding  office  for  two  and  often  four  years. 
This  feature  is  in  sharp  contrast  to  the  vesting 
of  the  executive  power  in  the  representatives 
of  wieldy  districts  or  "quotas,"  who  control 
and  direct  the  exercise  of  that  power  by  a 
single  executive  who  holds  at  their  pleasure. 
The  one  plan  that  should  not  be  attempted 
in  our  larger  cities  is  that  of  providing  for  the 
union  of  the  executive  and  legislative  functions 
in  a  few  commissioners  elected  at  large,  thereby 
violating  the  essential  principle  of  electing  rep- 
resentatives from  wieldy  geographical  districts 
or  by  wieldy  "quotas." 

i6s 


CHAPTER  XIV 

THE  PRINCIPLES  OF  THE  COMMISSION  FORM 

OF  GOVERNMENT  APPLIED 

TO  THE  STATE 

The  principles  at  the  basis  of  the  commission 
form  of  government  for  cities  may  equally  weU 
be  applied  to  a  state  government. 

Our  first  care  must  be  to  eliminate  the  divi- 
sion of  power  which  comes  from  having  two 
legislative  chambers,  each  equally  representing 
the  electorate.  The  legislative  power  as  it 
comes  from  the  electorate  at  large  must  be 
lodged  in  a  single  legislative  chamber. 

In  the  second  place  we  must  provide  for  the 
election  of  members  to  this  single  chamber  from 
"quotas"  or  districts  which  are  as  wieldy  as 
possible.  One  member  should  be  elected  by 
each    "quota"    or   from   each   district.'    The 

'  The  Illinois  plan  of  minority  representation  in  the  legislature 
provides  for  the  election  of  three  representatives  from  each  district 
and  allows  each  voter  to  cast  three  votes  as  he  pleases,  one  for 
each  candidate  or  three  for  one  candidate  or  one  and  a  half  for 
each  of  two  candidates.  Where  extra-legal  government  by 
politocrats  is  strong,  this  has  for  years  resulted  in  members  of  the 
i66 


Commission  Government  in  the  State 

requirement  that  districts  or  "quotas"  which 
elect  members  be  wieldy  is  so  important  that  it 
must  determine  the  minimum  number  of  mem- 
bers in  the  single  legislative  chamber.  If  it  be 
determined  that  a  district  or  "quota"  with 
4,000  male  voters  would  be  suitably  wieldy, 
then  each  district  would  contain  a  population  of 
about  25,000,  and  for  a  state  Hke  Illinois  there 
would  be  200  districts. 

Lastly,  following  the  commission  form  of  gov- 
ernment for  cities  we  must  place  the  control 
of  the  entire  executive  power  in  the  hands  of 
this  single  legislative  chamber.     In  short,  we 

legislature  being  appointed  by  the  extra-legal  government.  The 
electorate  has  been  wholly  and  palpably  disfranchised.  If  there 
are  two  political  machines  in  the  district,  one  dominant  and  the 
other  with  a  fair  strength,  they  have  by  agreement  between  them 
arranged  that  the  dominant  machine  should  nominate  only  two 
candidates  and  the  other  only  one.  Thus  the  voter  is  given  no 
choice  whatever  and  the  nominations  are  an  appointment.  If 
there  are  three  equally  strong  political  machines,  each  by  agree- 
ment will  nominate  one  candidate.  As  a  matter  of  fact  without 
agreement  the  number  of  candidates  nominated  will  usually  be 
as  above  indicated  under  the  circimistances  named.  Thus  the 
electorate  in  very  many  Illinois  districts  has  had  comparatively 
little  or  no  real  representation  in  the  lower  house  of  the  legis- 
lature for  years.  The  worst  elements  in  the  house  have  under 
this  system  been  returned  again  and  again.  See  editorial  in 
the  Chicago  Tribune  for  December  22,  1912,  on  "Minority 
Representation." 

167 


Unpopular  Government  in  the  United  States 

must  apply  the  principle  of  uniting  the  execu- 
tive and  the  legislative  power  in  the  same  body. 
How,  it  will  be  asked,  can  this  be  done  ?  It  is 
essential  that  the  legislature  should  have  two 
hundred  members  so  that  the  districts  or 
"quotas"  may  be  wieldy.  How,  then,  is  it 
possible  to  give  to  the  legislature  control  of  the 
executive  power  ? 

It  is  beheved  that  the  plan  of  a  state  executive 
selected  by  the  single-chamber  legislature  and 
holding  at  its  pleasure,  after  the  manner  of  the 
controlled  executive  for  the  larger  cities,  will 
not  do.  It  is  true  the  state  executive  may  not 
handle  so  large  a  budget  as  some  cities,  but  the 
state  executive  power  is  not  for  that  reason  less 
important  or  extensive.  The  legislative  power 
of  the  state,  which  is  greater  than  the  legislative 
power  of  any  city,  may  build  up  the  state 
executive  functions  so  that  they  are  quite 
beyond  those  of  any  city.  The  state  execu- 
tive functions  are,  therefore,  always  potentially 
more  extensive  than  those  of  the  city  executive. 
Then  in  the  state  legislature  composed  of  one 
hundred  members  or  more  representing  differ - 

i68 


Commission  Government  in  the  State 

ent  political  and  party  programs,  there  are  far 
greater  chances  of  a  serious  deadlock  than  in  a 
city  council.  When  a  deadlock  occurs  in  the 
state  legislature  it  may  be  difficult,  if  not 
impossible,  to  determine  what  are  the  con- 
trolling elements  in  the  legislative  assembly 
if  the  power  of  selection  is  left  with  the  legis- 
lature itself.  There  is  need,  therefore,  of  an 
independent  authority  outside  the  legislature 
to  select  from  it  those  who  shall  wield  the 
executive  power  and  thus  rescue  the  exercise 
of  that  power  from  any  deadlock  among  the 
legislators. 

These  considerations  lead  naturally  to  the 
following  plan:  All  executive  acts  must  be 
done  as  now,  in  the  name  of  a  single  executive. 
But  the  control  of  all  executive  acts  must  be 
placed  in  the  hands  of  a  council  of  state,  to  be 
composed  of  (let  us  say)  seven  members,  who 
should  usually  be  drawn  from  the  leaders  of 
the  regularly  voting  majority  of  the  legislative 
chamber.  It  will  be  the  important  duty  of  the 
single  executive  to  determine  who  are  the  regu- 
larly voting  majority,  and  who  are  its  leaders, 
169 


Unpopular  Government  in  the  United  States 

to  summon  them  to  form  a  council  of  state,  to 
determine  when  those  leaders  have  ceased  to 
possess  a  regularly  voting  majority  and,  when 
that  occurs,  to  dismiss  them  or  accept  their 
resignations  and  replace  them  with  a  council 
of  state  which  has  at  its  command  a  regularly 
voting  majority.  Once  the  council  of  state  is 
selected,  however,  the  actual  control  of  the 
executive  function  will  reside  in  it.  Thus  the 
real  executive  is  the  council  of  state,  and  since 
it  must  usually  control  a  majority  of  the  legis- 
lature, it  will  have  possession  of  the  legislative 
power  as  well.  This  is  the  neat  and  feasible 
scheme  for  applying  the  essential  principle 
of  the  commission  form  of  government  when 
a  large  representative  assembly  is  a  necessity. 
The  method  of  selecting  the  single  executive 
whose  principal  duty  it  is  to  place  the  execu- 
tive power  of  the  state  from  time  to  time  in 
the  control  of  a  proper  council  of  state,  selected 
from  among  the  leaders  of  a  majority  of  the 
legislature,  is  not  very  important.  Very  likely 
the  only  practicable  way  would  be  by  election 

at  large  at  considerable  intervals  of  time. 
170 


Commission  Government  in  the  State 

Very  little  alteration  in  our  present  state  con- 
stitutions is  necessary  in  order  to  bring  about 
the  greater  part  of  the  change  in  the  plan  of 
government  suggested.  The  members  of  the 
lower  house  of  the  legislature  are  usually  elected 
from  fairly  wieldy  districts.  The  union  of  the 
executive  and  legislative  functions  is  very 
simply  accomplished  by  dropping  from  the  list 
of  elective  officers  the  lieutenant-governor,  the 
secretary  of  state,  the  auditor  of  public  ac- 
counts, the  treasurer,  the  superintendent  of 
pubhc  instruction,  the  attorney-general,  and 
others  and  adding  the  following  provisions: 

There  shall  be  an  executive  council  to  advise  the 
governor  in  the  government  of  the  state.  The  mem- 
bers thereof  shall  be  chosen  and  summoned  by  the 
governor  and  serve  as  executive  councilors.  They 
shall  hold  office  during  the  pleasure  of  the  governor. 

The  executive  power  vested  in  the  governor  by  this 
constitution  shall,  unless  in  this  constitution  otherwise 
specified,  be  exercised  by  the  governor  acting  with  the 
advice  of  the  executive  council.  The  provisions  of  this 
constitution,  referring  to  the  governor  in  councU,  shall 
be  construed  as  referring  to  the  governor  acting  with 
the  advice  of  the  executive  council. 


Unpopular  Government  in  the  United  States 

The  governor  may  appoint  oflficers  not  exceeding  ten 
in  number  to  administer  such  departments  of  the  state 
as  the  governor  in  council  may  establish  and  until  such 
establishment,  to  administer  the  departments  of  state, 
public  accounts,  treasury,  public  instruction,  justice, 
and  state  institutions.  Such  officers  shall  hold  office 
during  the  pleasure  of  the  governor.  They  shall  be  the 
members  of  the  executive  council  and  after  the  first 
general  election  of  members  of  the  general  assembly,  as 
herein  provided,  no  member  of  the  executive  council  shall 
hold  office  for  a  longer  period  than  three  months  unless 
he  is  or  becomes  a  member  of  either  house^  of  the  general 
assembly. 

The  necessary  result  of  such  changes  would  be 
that  the  governor  could  do  no  important  act 
without  the  consent  of  the  council.  The  coun- 
cil would  in  fact  be  the  executive.  The  election 
which  put  the  governor  in  office  might  be 
expected  to  put  a  majority  of  the  same  party 
in  the  legislature,  and  the  executive  council 
would  naturally  be  selected  from  the  leaders  of 
that  majority.  Even  if  the  governor  and  the 
majority  of  the  legislature  belonged  to  different 
parties,  yet  there  would  be  the  strongest  motive 

'  This  assumes  the  existence  of  a  second  chamber  as  suggested 

in  chap.  xvi. 

172 


Commission  Government  in  the  State 

for  the  selection  of  an  executive  council  from 
the  majority  of  the  legislature,  thus  avoiding  the 
responsibility  for  a  contest  between  the  major- 
ity in  the  legislature  and  the  executive  which 
would  throw  the  government  into  confusion. 

The  complete  success  of  a  plan  which  involves 
the  union  of  the  executive  and  legislative  power 
in  the  leaders  of  a  majority  of  the  legislature 
requires  the  presence  in  the  legislature  of  some 
at  least  of  the  leaders  of  the  principal  parties. 
The  absence  from  the  legislature  of  such  leaders 
would  leave  the  control  of  the  most  important 
powers  of  government  in  the  hands  of  the  less 
experienced  and  less  able  members  of  the  party. 
The  opposition  also  might  have  a  less  effective 
representation.  This  would  be  a  serious  matter 
for  the  parties  themselves.  The  pubHc  service 
also  would  suffer.  It  is  in  the  interest  of  the 
best  administration  of  the  affairs  of  state  that 
the  abihty  and  experience  of  the  party  leaders 
of  both  the  majority  and  the  minority  be  kept 
in  the  service  of  the  state  as  long  as  possible. 
It  is  also  important  that  the  executive  and  legis- 
lative powers  be  exercised  for  the  benefit  of 
173 


Unpopular  Government  in  the  United  States 

the  state  as  a  whole  and  not  for  the  purpose 
of  furthering  the  parochial  interests  of  indi- 
vidual legislators.  This  is  most  surely  accom- 
plished by  the  presence  in  the  legislature  of  the 
party  leaders  of  the  majority.  There  are 
several  ways  of  insuring  the  return  to  the  legis- 
lature of  some  at  least  of  the  leaders  of  the 
principal  parties,  even  when  they  may  not  be 
able  to  secure  a  plurality  of  the  votes  cast  in 
the  district  where  they  run:  First,  candidates 
for  the  legislature  may  be  permitted  to  stand 
for  election  in  any  district  of  the  state,  no 
matter  where  they  reside.  That  does  not  go 
far,  however,  in  the  direction  of  returning 
party  leaders  unless  elections  are  held  at  dif- 
ferent times  in  different  districts.  Second,  if 
elections  are  held  at  the  same  time  in  all  dis- 
tricts the  elector  might  be  permitted  to  vote 
for  a  candidate  running  in  his  own  or  any  other 
district.  This  would  enable  the  party  to  switch 
some  of  its  votes  in  a  district  where  it  was 
strong  to  special  leaders  standing  for  election 
in  districts  where  their  success  was  in  doubt. 
This  is  one  of  the  proposals  of  the  People's 
174 


Commission  Government  in  the  State 

Power  League  of  Oregon.  Third,  a  direct  way 
of  accomplishing  the  desired  result  would  be 
to  permit  each  party  polling  at  least  25  per 
cent  of  the  total  vote  cast  at  an  election  for 
members  of  the  legislature  to  appoint  as  many 
representatives  as  the  entire  party  vote  con- 
tains tenths  of  the  total  vote  cast.  Fourth, 
the  same  result  might  be  obtained  by  providing 
for  the  election  at  large  of  a  small  number  of 
legislators  by  "quotas,"  according  to  the  Hare 
plan/ 

Now  observe  the  effect  of  the  application  of 
the  principles  of  the  commission  form  of  govern- 
ment for  cities  to  the  state  government.  The 
office  of  legislator  has  been  made  important  and 
conspicuous  because  it  is  the  only  office  in  the 
state  government  (except  that  of  governor)  for 
which  the  voter  casts  his  ballot,  and  because 
the  successful  candidate  will  cast  one  of  two 
hundred  ballots  for  the  selection  of  the  real 
executive.  Under  such  a  system  it  is  certain 
that  the  voter  will  know  in  advance  that  a  vote 
for  candidate  A  means  a  vote  for  B,  as  the  real 

'See  ante,  p.  153. 

I7S 


Unpopular  Government  in  the  United  States 

executive  or  leader  of  the  council  of  state. 
Thus  a  vote  for  state  legislator  will  be  a  vote  to 
confer  the  entire  legislative  and  executive  power 
of  the  state  upon  a  given  group  of  legislators 
and  their  leaders.  We  have  indeed  made  the 
voting  privilege  of  the  elector  so  important  that 
he  will  not  only  be  sure  to  vote,  but  he  may  be 
expected  to  do  much  to  keep  himseK  fully  in- 
formed about  the  candidates.  We  have  made 
the  act  of  voting  so  simple  that  the  elector  can- 
not fail  to  use  such  inteUigence  as  he  has  and 
to  spend  any  extra  time  which  he  may  have  in 
informing  himself  further.  By  providing  for 
the  election  of  single  legislators  from  wieldy 
districts  or  by  wieldy  "  quotas  "  we  have  brought 
the  voter  as  near  the  candidates  as  possible. 
By  stimulating  the  number  of  candidates  we 
have  given  the  voter  as  wide  a  range  of  choice 
as  possible.  These  devices  aU  have  a  tendency 
to  eliminate  the  politically  ignorant  vote.  The 
actual  inteUigence  of  the  electorate  is  given  the 
fullest  possible  play,  and  even  stimulated  to 
unusual  efforts  of  comprehension.     This  is  a 

guaranty,  and  it  is  the  only  guaranty,  against 

176 


Commission  Government  in  the  State 

that  political  ignorance  on  the  part  of  a  large 
number  of  voters  which  provides  the  opportun- 
ity for  the  professional  pohtician  to  step  in  and, 
in  the  guise  of  advising  and  directing  the  voter 
how  to  vote,  in  effect  to  cast  his  ballot  for  him. 
The  essential  condition  upon  which  a  vote- 
directing  pohtical  machine  is  founded  and 
maintained  has,  therefore,  been  eliminated. 
Under  such  circumstances  a  vote-directing  ma- 
chine, instead  of  sHpping  over,  in  the  darkness 
and  obscurity  which  comes  from  a  multiplicity 
of  elections  and  offices  to  be  filled,  those  whom 
it  can  control,  for  ends  of  which  the  electorate 
does  not  really  approve,  must  begin  to  appeal 
to  the  voter's  intelligence  with  candidates  of 
character,  arguments,  platforms,  and  pledges  of 
legislation  which  those  elected  have  the  power 
to  keep.  Such  activities  on  the  part  of  any 
organization  will  at  once  change  it  from  a  mere 
vote-directing  machine  into  a  legitimate  party 
with  real  principles  and  a  real  program.  The 
leaders  of  such  an  organization  will  necessarily 
stand  for  election  in  the  real  government,  which 

will  now  be  the  legal  govermnent.    Real  party 
177 


Unpopular  Government  in  the  United  States 

leaders  will  appear  in  the  legislature  with  real 
party  programs  for  legislation  and  real  party 
responsibihty. 

We  have,  however,  in  the  scheme  of  state 
government  presented,  not  only  done  our 
utmost  to  destroy  at  the  roots  extra-legal  un- 
popular government,  but  we  have  provided  a 
government  which  can  operate.  We  have  cut 
off  all  bickering  between  the  legislature  and  ex- 
ecutive. We  have  given  power  to  an  executive 
council  which  will  enable  it  to  do  something. 
We  have  constituted  a  government  which 
will  be  inactive,  not  because  its  hands  are  tied, 
but  because  it  chooses  not  to  do  anything. 
The  leader  of  the  successful  party  cannot  say 
that  he  has  failed  to  keep  the  party  pledges 
because  he  had  no  power  to  act.  No  one,  how- 
ever, need  fear  that  the  concentration  of  power 
in  the  hands  of  a  few  will  prove  in  any  way 
dangerous  to  the  liberties  of  the  people.  The 
council  of  state  can  exercise  power  only  so  long 
as  it  retains  the  confidence  of  a  majority  in  the 
legislature.     Even  out  of  the  season  of  elections 

the  legislature  will  necessarily  be  sensitive  to 
178 


Commission  Government  in  the  State 

public  opinion,  and  a  council  of  state  that  did 
not  consider  the  effect  of  public  opinion  upon  a 
majority  of  the  members  of  the  legislature  could 
not  long  hold  power.  By  frequent  elections  the 
majority  may  be  changed  and  the  council  re- 
called in  favor  of  the  leader  of  an  opposition. 
The  effectiveness  of  voting  will  thus  be 
enormously  increased,  for  the  electorate  will  not 
have  to  turn  out  a  dozen  different  officers  at 
several  different  elections  in  order  to  change 
control  of  the  legal  government.  Voting  at  a 
single  election  does  it.  Upon  a  poll  of  the  dis- 
tricts or  of  the  "quotas"  it  is  determined 
whether  one  set  of  legislators  or  another  shall 
control  the  executive  and  legislative  power  cen- 
tered in  a  single  chamber.  No  government  can 
be  unpopular  or  an  executive  council  remain  in 
office  against  the  will  of  the  electorate  under 
such  a  scheme  of  government.  No  govern- 
ment can  remain  in  office  and  avoid  the  conse- 
quences of  failure  and  inefficiency  when  so 
organized. 

If  such  a  scheme  of  government  does  not 

break  the  malign  influence  of  an  extra-legal 
179 


Unpopular  Government  in  the  United  States 

government  founded  upon  a  vote-directing 
machine,  then  such  a  power  cannot  be  broken. 
If  the  scheme  of  government  which  has  been 
outlined  does  not  give  the  electorate  a  real 
opportunity  to  express  its  will  through  its  rep- 
resentatives and  to  make  that  will  into  law  and 
then  enforce  the  law  through  those  same  rep- 
resentatives, then  our  attempt  to  achieve  repre- 
sentative government  will  have  failed  and  we 
shall  have  been  unsuccessful  in  securing  that 
which  other  nations,  even  though  in  form  at 
least  still  governed  by  kings,  have  been  able  to 
achieve. 


i8o 


CHAPTER  XV 

CONTEMPORARY  PLANS  LOOKING  TOWARD 
THE  UNION  OF  THE  EXECUTIVE  AND 
LEGISLATIVE  POWERS  OF  STATE  GOV- 
ERNMENTS 

Our  state  legislatures  are  now  for  the  most 
part  composed  of  members  elected  from  fairly 
wieldy  districts.  Governmental  changes  then 
which  look  toward  the  application  of  the  prin- 
ciples of  commission  government  to  the  state, 
as  outlined  in  the  preceding  chapter,  have  to 
do  principally  with  the  union  of  the  executive 
and  legislative  powers.  Several  recent  proposals 
for  changes,  coming  from  Illinois,  Wisconsin, 
Kansas,  and  Oregon,  indicate  that  legislators, 
governors,  and  political  scientists  with  practical 
experience  have  concluded  that  the  executive 
and  legislative  powers  must  be  brought  nearer 
together.  The  interesting  fact,  however,  is 
that  no  plans  have  been  suggested  by  which  the 
legislature  is  to  absorb  the  control  of  the  execu- 
tive power  by  placing  it  in  the  hands  of  the 


Unpopular  Government  in  the  United  States 

leaders  of  a  majority  of  the  legislature.  On  the 
contrary,  the  proposals  for  bringing  the  execu- 
tive and  legislature  nearer  together  have,  with 
one  exception,  been  along  the  Hne  of  conferring 
upon  the  executive  greater  power  to  control 
and  coerce  the  legislature. 

The  Illinois  House  of  Representatives  at  its 
1 9 13  session  adopted  a  rule  for  which  Repre- 
sentative Morton  D.  Hull  was  responsible.  It 
provided  as  follows: 

When  any  bill  or  resolution  is  introduced  for  the  pur- 
pose of  carrying  into  effect  any  recommendation  of  the 
governor,  it  may  by  executive  message  addressed  to  the 
speaker  of  the  house  be  made  an  administration  meas- 
ure. An  administration  measure  may  be  sent  to  the 
appropriate  committee,  or  it  shaU,  upon  request  of  its 
introducer,  be  sent  to  committee  of  the  whole  house. 
When  such  a  measure  has  been  reported  out  of  com- 
mittee, it  shall  have  precedence  in  the  consideration  of 
the  house  over  aU  other  measures  except  appropriation 
bills.  The  house  shall  sit  in  committee  of  the  whole 
for  the  consideration  of  administration  measures  on 
Tuesday  morning  immediately  after  the  reading  of  the 
house  journal. 

This  rule  very  plainly  brings  the  executive  and 

the  legislature  nearer  together.     It  does  so, 
182 


Union  of  Executive  and  Legislative  Powers 

however,  only  by  conferring  upon  the  governor 
an  important  privilege  which  enables  him  to 
advance  his  legislative  program. 

The  proposed  amendment  to  the  Wisconsin 
constitution  providing  for  an  initiative  by  the 
electorate  at  large  for  legislation'  gives  to  the 
governor  a  practical  method  of  coercing  or 
"steam-rollering"  the  opposition  of  a  hostile 
legislature.  It  provides  for  the  submission  to 
the  electorate  at  large  of  any  bill  introduced  into 
the  legislature  any  time  within  the  jQrst  thirty 
days  of  the  session.  This  enables  the  governor 
to  present  all  administration  bills  to  the  legis- 
lature and  if  they  fail  of  passage  he  may  then 
present  them  for  enactment  into  law  by  the 
electorate  at  large.  This  is  giving  the  governor 
power  to  promote  and  control  legislation  to  a 
very  great  degree. 

Governor  Hodges  of  Kansas  in  his  message 
to  the  legislature  of  March  lo,  1913,  in  terms 
advocated  the  adoption  of  the  commission  plan 
of  government  for  the  state.  As  there  outlined, 
the  details  of  the  plan  were  somewhat  vague. 

'  Joint  resolution  4A,  introduced  June  16,  1913. 
183 


Unpopular  Government  in  the  United  States 

It  consisted  apparently  of  a  unicameral  legis- 
lature containing  one  or  two  members  from  each 
of  the  eight  congressional  districts  of  the  state, 
with  terms  of  from  four  to  six  years.  This 
legislative  commission  was  to  be  in  session  as 
the  exigencies  of  the  public  business  demanded. 
The  governor  was  to  be  ex  officio  a  member  and 
presiding  officer  of  the  commission  or  legislative 
assembly.  We  observe  here  no  other  union  of 
the  executive  and  legislative  powers  than  occurs 
in  a  city  government  like  that  of  Chicago,  where 
the  mayor  is  elected  at  large  and  vested  with 
the  executive  power  and  presides  over  a  uni- 
cameral council  of  comparatively  few  members 
exercising  the  municipal  legislative  power. 
Governor  Hodges'  suggestion  would  vest  more 
power  in  the  state  executive  than  he  now  has, 
by  reason  of  his  being  the  presiding  officer  of 
the  legislative  body.  Apart  from  this,  it  does 
not  go  farther  than  to  propose  a  reduction  in 
the  size  of  the  legislature.  But  even  that  part 
of  the  plan  may  be  open  to  the  objection  that 
it  violates  the  fundamental  principle  of  the 
selection  of  representatives  from  wieldy  geo- 


Union  of  Executive  and  Legislative  Powers 

graphical  districts  or  by  wieldy  "quotas."  On 
the  whole,  Governor  Hodges'  plan  would  seem 
to  be  one  which,  like  the  Hull  rule  in  Illinois 
and  the  Wisconsin  provision  for  an  initiative, 
increased  the  power  of  the  executive  elected 
at  large  and  diminished  the  importance  and 
power  of  the  representatives  of  the  electorate. 

The  latest  plans  of  the  People's  Power 
League  of  Oregon  are  set  out  in  detail  in  cer- 
tain constitutional  amendments  which  are  to 
be  submitted  to  the  people  upon  a  referendum.^ 

We  notice  first  of  all  a  concentration  of  execu- 
tive power  in  the  governor  by  reason  of  the  fact 
that  he  appoints  his  cabinet  consisting  of  an 
attorney-general,  a  secretary  of  state,  a  treas- 
urer, a  printer,  a  superintendent  of  public 
instruction,  a  secretary  of  labor,  a  state  business 
manager,  and  such  others  as  may  be  provided 
by  law.  He  appoints  also  all  sheriffs  and  dis- 
trict attorneys  throughout  the  state.     These 

'  These  were  furnished  to  the  author  by  Mr.  U.  S.  U'Ren  of 
Oregon  City,  Oregon.  One  is  in  the  form  of  a  letter  dated  Decem- 
ber 28,  1911,  asking  for  criticisms  on  the  draft  of  constitutional 
changes.  The  other  is  in  the  form  of  an  initiative  petition  for  the 
submission  of  particular  constitutional  amendments  (being  a  part 
of  the  entire  plan  of  changes)  for  adoption  by  the  electorate. 

i8s 


Unpopular  Government  in  the  United  States 

local  officers,  however,  are  subject  to  a  recall  by 
the  electorate.  The  powers  and  duties  of  all 
state  commissions  are  consolidated  and  vested 
in  the  governor  and  become  a  part  of  the  execu- 
tive powers  and  functions,  excepting  the  rail- 
road commission,  the  members  of  which  are, 
however,  appointed  by  the  governor.  The 
governor's  power  is  further  increased  by  giv- 
ing to  him  and  his  cabinet  officers  seats  in  a 
unicameral  legislature.  It  is  made  the  duty  of 
the  governor  to  introduce  all  bills  for  appro- 
priating money.  While  the  legislature  may 
reduce  the  amount  of  appropriations,  it  cannot 
increase  them  without  the  consent  of  the  gover- 
nor. The  general  veto  power  of  the  governor  is 
taken  away,  but  he  would  still  seem  to  have 
power  by  promoting  a  referendum,  to  appeal 
to  the  electorate  to  override  the  legislature.' 

The  single-chamber  legislature  is  to  consist  of 
60  members  not  less  than  2  of  whom  are  elected 
from  each  district  containing  approximately  as 

^  "The  power  of  the  governor  to  promote  initiative  and  refer- 
endum  petitions  is  not,   however,  increased  by  the  suggested 
amendment.     He  has  now  the  same  rights  in  this  as  a  private 
citizen  but  no  oflBcial  powers"  (comment  of  U.  S.  U'Ren). 
186 


Union  of  Executive  and  Legislative  Powers 

many  sixtieths  of  the  population  as  there  are 
members  to  be  elected  from  the  district.  The 
voter  in  no  case  is  permitted  to  vote  for  more 
than  one  candidate.  Hence  each  party  would 
be  expected  to  put  up  as  many  candidates  as 
it  estimated  its  strength  to  be  in  sixtieths  of 
the  population.  The  result  is  bound  to  be  a 
minority  representation,  if  there  be  any  sub- 
stantial minority.  To  obviate  the  minority 
having  as  much  power  as  the  majority  each 
member  elected  casts  as  many  votes  in  the 
legislature  as  there  are  voters  who  cast  their 
ballots  for  him.  The  unsuccessful  candidate 
for  governor  who  receives  the  highest  number  of 
votes  in  his  party  is  made  a  member  of  the 
legislature  with  a  voting  strength  equal  to  the 
number  of  votes  cast  for  the  unsuccessful  can- 
didates of  his  party  for  places  in  the  legislature. 
One  might  hazard  the  guess  that  a  legislature 
so  precisely  representing  the  voting  strength  of 
all  factions  and  parties  was  peculiarly  Hable 
to  legislative  deadlocks  which  would  again 
vastly  increase  the  opportunity  of  power  in  a 
governor  who,  with  his  cabinet,  had  places  in 
187 


Unpopular  Government  in  the  United  States 

the  legislative  body  and  who  possessed  a  vast 
power  over  appropriations. 

On  the  whole  these  new  plans  from  Oregon 
tend  in  the  direction  of  magnifying  a  one-man- 
executive  power  at  the  expense  of  the  legislature 
rather  than  the  increasing  of  the  power  of  the 
legislature  by  giving  to  its  leaders  the  control  of 
the  executive  power. 

At  the  1913  session  of  the  lUinois  legislature 
there  was  introduced  by  Senator  Logan  Hay  a 
bill  to  estabHsh  what  is  now  known  as  the  Hay 
plan  for  a  legislative  commission.  It  provided 
for  a  joint  legislative  commission  to  consist  of 
the  governor,  who  was  made  ex  officio  chairman 
of  the  committee,  the  Keutenant-governor,  the 
speaker,  the  chairmen  of  the  committees  on 
appropriations  and  judiciary  of  the  Senate  and 
the  House,  and  five  other  senators  and  five  other 
representatives,  selected  as  other  committees 
were,  viz.,  in  the  senate  by  the  resolution  of 
that  body,  in  the  House  by  the  speaker.  The 
governor,  lieutenant-governor,  and  speaker 
were  to  serve  on  the  committee  during  their 
term  of  office  and  the  other  members  till  the 


Union  of  Executive  and  Legislative  Powers 

convening  of  the  next  General  Assembly  after 
their  appointment.  The  commission  was  to  be 
in  session  from  the  commencement  of  one  regu- 
lar session  of  the  legislature  to  the  commence- 
ment of  the  next.  It  was  given  power  to 
prepare  and  bring  forward  a  complete  legis- 
lative program,  including  a  budget  of  appropri- 
ations for  the  coming  legislative  session,  and  to 
estabUsh  a  legislative  reference  bureau.  It  was 
given  power  to  investigate  the  administration 
of  any  department  of  the  state  government 
and  the  expenditure  of  any  appropriation  made 
by  the  General  Assembly.  Such  a  plan  was 
admirably  designed  to  increase  the  power  of  the 
legislature  by  centrahzing  in  its  leaders  power 
and  authority  to  present  a  comprehensive  and 
matured  program  before  the  legislature  con- 
vened. At  the  same  time  it  conferred  no  addi- 
tional power  over  legislation  upon  the  governor. 
On  the  contrary,  it,  in  a  mild  way,  actually 
attempted  to  secure  additional  control  over  the 
executive  power.  The  mere  existence  of  a 
standing  legislative  commission  composed  of 
the  leaders  of  the  legislature,  with  power  at  any 


Unpopular  Government  in  the  United  States 

time  to  investigate  the  administration  of  any 
department  of  the  state  government  or  the  expen- 
diture of  any  money  appropriated,  was  a 
continuing  menace  to  the  present  executive 
isolation  and  irresponsibihty. 

The  plan  evidently  met  with  determined 
opposition  from  the  executive,  for  in  the  House 
it  was  amended  so  as  to  provide  four  members 
from  the  Senate  and  House  instead  of  five,  and 
these  were  to  be  appointed  hy  the  governor.  The 
power  of  investigation  by  the  commission  was 
restricted  to  such  as  it  was  called  upon  to  make 
by  the  governor,  the  General  Assembly,  or 
either  house,  and  the  power  to  investigate  the 
administration  of  any  department  of  the  state 
government  was  entirely  omitted.  In  this  form 
the  bill  became  one  which  would  vastly  increase 
the  governor's  power  by  delivering  into  his 
hands  the  authority  of  the  commission  and 
giving  him  recognized  administration  members 
of  the  legislature.  A  deadlock  ensued  between 
the  House  and  the  Senate,  and  the  bill  as 
finally  passed  contained  a  provision  only  for 

establishing  a  legislative  reference  bureau.    In 
190 


Union  of  Executive  and  Legislative  Powers 

the  contest  over  the  original  plan  and  the 
house  modifications  we  have  a  clear-cut  recog- 
nition of  the  necessity  of  bringing  the  governor 
and  the  legislature  nearer  together.  We  also 
have  presented  a  sharp  dispute  as  to  whether 
the  governor  shall  have  added  to  his  power 
further  authority  over  the  promotion  of  legis- 
lation or  whether  the  legislature  shall  increase 
its  power  by  organization,  and  at  the  same 
time  secure  some  control,  if  not  an  actual 
domination,  over  the  executive  power. 

It  is  rather  startling  that  in  all  the  above 
proposals  which  look  toward  the  closer  relation 
of  the  executive  and  legislative  powers  we 
should  find  a  strong  tendency  toward  the  in- 
creasing of  the  power  of  the  single  executive  by 
giving  him  greater  control  over  the  legislative 
power.  Historically  the  effort  has  constantly 
been  to  break  down  the  power  of  the  single 
executive.  True,  the  executive  in  such  cases 
was  not  subject  to  the  electorate  at  frequent 
intervals.  But  frequent  elections  may  not  pro- 
tect the  governed  from  a  vast  number  of  errors 

of  judgment  and  smaller  tyrannies,  executive 
191 


Unpopular  Government  in  the  United  States 

oppression  and  bad  appointments,  which  do 
not  become  a  matter  of  general  knowledge  or 
make  a  considerable  issue  before  the  electorate. 
Good  executive  government  in  the  sense  of  one 
which  is  just  and  fair,  well  balanced,  seeking 
improvements,  and  acting  conscientiously  in 
lesser  affairs,  comes  more  certainly  from  a  small 
committee  of  experienced  leaders  than  from  a 
single  man.  The  exchange  of  views  by  such  a 
body  and  the  reaction  of  one  member  upon 
another  has  a  value  which  cannot  be  estimated. 
The  single  executive  on  the  other  hand  is  likely 
to  have  no  fixed  set  of  responsible  advisers. 
He  is  too  frequently  swayed  by  the  advice  of  the 
last  man  who  reaches  his  ear. 

In  making  constitutions  it  is  quite  as  easy  to 
unite  the  executive  and  legislative  powers  by 
giving  the  control  of  the  executive  power  to  a 
majority  of  the  legislature  as  it  is  to  hand  the 
control  of  the  legislative  power  over  to  the  single 
executive.  From  the  point  of  view  of  expedi- 
ency there  is  much  to  be  said  of  the  plan  which 
places  the  control  of  the  executive  power  in  the 

hands  of  the  legislature. 
192 


CHAPTER  XVI 

THE  SECOND-CHAMBER  PROBLEM^ 

The  institution  of  private  property  is  still 
with  us  and  likely  to  remain  for  some  time. 
The  acquisition  and  holding  of  private  prop- 
erty is  still  the  main  object  of  our  existence 
and  doubtless  will  continue  to  be  so.  It  is 
privately  held  property  which  pays  taxes  and 
supports  the  state.  In  any  government  prop- 
erty is  entitled  to  fair  consideration  and  protec- 
tion. Special  differentiated  classes  of  property, 
such  as  railroads  and  other  public-service 
plants,  manufacturing  interests,  mines,  and 
landlords'  and  farmers'  holdings  are  entitled 
to  fair  consideration  and  protection.  Indeed, 
the  state  that  permitted  indiscriminate  assaults 
upon  private  property  or  upon  differentiated 

'  Much  of  the  argument  in  this  volume  is  in  support  of  the 
Short  Ballot  movement.  It  is  only  fair  to  say,  however,  that  the 
leaders  of  this  movement  in  the  National  Short  Ballot  Organiza- 
tion dissent  from  the  suggestions  put  forward  in  this  chapter  as 
to  the  need  of  special  protection  to  property  interests,  and  the 
methods  suggested  of  working  out  such  special  protection  are, 
therefore,  no  part  of  the  Short  Ballot  doctrine. 

193 


Unpopular  Government  in  the  United  States 

classes  of  private  property  could  not  long 
endure.  Certainly  its  prosperity  would  be 
short-lived.  These  premises  have  not  been 
questioned  in  the  past.  Not  many  in  this 
day  would  be  found  to  controvert  them. 

What  sort  of  demand,  then,  was  there,  when 
our  state  governments  were  first  organized,  for 
governmental  arrangements  suitable  to  protect 
property  interests  ?  How  was  that  demand 
answered  in  our  mid-nineteenth-century  plans 
of  government  ?  What  is  the  character  of  that 
same  demand  today  and  how  do  our  present 
governmental  arrangements  answer  it  ?  These 
are  important  inquiries  preliminary  to  our  ulti- 
mate question:  How  are  property  interests  to 
be  protected  when  the  principles  of  the  com- 
mission form  of  government  are  apphed  to  the 
state  ? 

It  is  the  object  of  this  chapter  to  attempt  to 
answer  in  outline  these  questions. 

Our  federal  government  was  estabhshed  in  a 

territory  which  was  mostly  a  wilderness,  with 

a  fringe  of  frontier  and  colonial  communities 

on  the  Atlantic  seaboard.     Whenever  a  state 
194 


The  Second-Chamber  Problem 


government  has  been  first  established,  the  ter- 
ritory of  which  it  has  been  composed  has  been 
either  wholly  or  very  largely  of  a  frontier  char- 
acter. In  such  communities  opportunity  was 
abundant  and  pretty  much  equal  to  all.  Men 
started  with  not  much  advantage  except  that 
with  which  nature  had  endowed  them.  The  dif- 
ferences in  wealth  were  not  such  as  to  be  beyond 
the  hope  of  most  men  to  bridge  in  a  Ufetime. 
The  population  was  controlled  by  a  community 
of  feeling  and  a  certain  similarity  of  occupation. 
In  such  a  society  any  attack  upon  property 
interests  was  bound  to  come  home  to  too  many 
to  make  such  an  attack  possible.  The  practical 
danger  was  that  states  would  permit  the  resi- 
dent debtor  class  to  repudiate  its  obligations  to 
a  non-resident  creditor  class.  This  was  headed 
off  by  the  very  practical  provision  of  the 
federal  constitution  that  no  state  should  pass 
any  law  impairing  the  obligation  of  contracts. 
Apart  from  this  the  governmental  devices 
adopted  to  protect  property  interests  were 
largely  theoretical  and  academic.  They  were 
for  the  most  part  directed  to  preventing  all 
19s 


Unpopular  Government  in  tJie  United  States 

sudden  legislative  action.  Legislation  must  in 
every  case  be  the  result  of  "sober  second 
thought."  No  distinction  was  made  between 
legislation  which  affected  property  interests 
and  any  other  sort.  The  safeguards  for  secur- 
ing the  "  sober  second  thought "  of  the  electorate 
or  legislature  were  as  appHcable  to  the  most 
trivial  legislative  matters  as  to  the  most  im- 
portant. Thus  we  have  the  separation  of  the 
legislature  into  two  houses.  The  members  of 
both  are  elected.  The  only  difference  is  that 
the  number  of  the  upper  house  is  smaller  and 
the  term  a  Httle  longer.  We  have  also  the 
limited  veto  power  of  the  governor.  Although 
not  in  terms  provided  for  in  our  constitution, 
it  has  become  a  part  of  our  scheme  of  govern- 
ment that  the  courts  shall  exercise  the  power 
of  declaring  void  acts  of  the  legislature  which 
are  forbidden  by  the  written  constitution.  As 
these  written  constitutions  have  contained  al- 
most universally  the  provision  that  "no  per- 
son shall  be  deprived  of  Hfe,  hberty,  or  property 
without  due  process  of  law,"  the  courts  have 

had  the  power  to  declare  void  acts  of  the 
196 


The  Second-Chamber  Problem 


legislature  which  they  deemed  to  be  a  taking 
of  the  "liberty"  or  "property"  of  any  person 
"  without  due  process  of  law."  When  exercised 
this  power  has  amounted  in  effect  to  a 
judicial  veto.  If  the  court  deem  the  act  in 
question  to  have  been  forbidden  by  the  consti- 
tution the  act  is  invahd  until  such  time  as  the 
constitution  shall  have  been  changed  and  the 
general  prohibition  eliminated,  at  least  so  far 
as  the  offending  act  in  question  is  concerned. 
It  was,  however,  only  the  taking  '^without  due 
process  of  law"  which  was  forbidden.  But 
legislation  was  itself  "due  process  of  law" 
unless  it  was  arbitrary  and  irrational  in  its 
operation.^  Thus  an  act  which  forbade  the  con- 
sumption of  liquor  by  red-haired  persons  and 
which  imposed  a  fine  for  the  offense  would  be 
arbitrary  and  irrational  in  its  application,  and 
the  imposition  of  a  fine  pursuant  to  the  act 
would  be  a  taking  of  the  property  of  the  indi- 
vidual without  due  process  of  law.  But  more 
than  this,  the  arbitrary  character  of  the  legis- 
lative act  must  be  clear  beyond  aU  reasonable 

'  Hurlado  v.  California,  no  U.S.  516. 
197 


Unpopular  Government  in  the  United  States 

doubt/  It  must  be  so  clear  that  two  rational 
men  could  not  differ  about  the  matter.^  These 
were  the  limits  of  the  power  of  the  court  as  origi- 
nally laid  down.  It  is  apparent  that  with  these 
limitations  conscientiously  observed  the  veto 
power  of  the  court  over  legislation  was  of  largely 
theoretical  and  academic  value  in  protecting 
property  interests.  The  fact  is  that  this  power 
of  the  courts  to  declare  laws  unconstitutional 
because  they  took  some  person's  life,  liberty,  or 
property  without  due  process  of  law  remained 
practically  unused  during  the  first  half  of  the 
nineteenth  century.  Perhaps  there  was  no  call 
for  the  protection  of  property  interests  from 
the  legislature.  Perhaps  the  limitations  upon 
the  exercise  of  the  power  of  the  court  w^ere 
too  faithfully  observed.  It  is  not  unlikely  that 
both  reasons  contributed  to  the  results. 

'James  Bradley  Thayer,  "The  Origin  and  Scope  of  the 
American  Doctrine  of  Constitutional  Law,"  7  Harv.  Law  Rev., 
129,  139  ff. 

2  "The  validity  of  a  law  ought  not,  then,  to  be  questioned, 
unless  it  is  so  obviously  repugnant  to  the  constitution,  that  when 
pointed  out  by  the  judges,  all  men  of  sense  and  reflection  in  the 
community  may  perceive  the  repugnancy." — Per  Chancellor 
Waties  in  AdmWs  of  Byrne  v.  Adm'rs  of  Stewart,  3  Des.  466  (South 
Carohna,  181 2). 

198 


The  Second-Chamber  Problem 


Before  i860  the  Atlantic  seaboard  states 
ceased  to  be  provincial  or  frontier  communities. 
Since  i860  an  enormous  area  in  the  Mississippi 
Valley  has  ceased  to  be  a  frontier  community. 
Great  cities  have  arisen.  Whole  states  have 
been  brought  under  cultivation.  Manufactur- 
ing has  constantly  gone  forward.  Facility  in 
transportation  has  diminished  the  size  of  the 
country  twenty-fold  in  many  areas.  The  in- 
crease in  the  value  and  quantity  of  private 
property  has  been  fabulous.  So  enormous  an 
increase  in  so  short  a  time  has  necessarily 
resulted  in  the  concentration  of  immense 
fortunes  in  the  hands  of  a  considerable  number 
of  individuals.  Even  more  marked  has  been 
the  concentration  of  collective  property  hold- 
ings in  corporations.  The  financial  difference 
between  persons  of  some  property  and  those 
with  vast  fortunes  is  so  great  that  the  bridg- 
ing of  the  gap  by  even  the  exceptional  indi- 
vidual in  his  lifetime  is  out  of  the  question. 
The  financial  difference  between  the  position 
of  persons  possessing  some  property  and  the 

collective    wealth    of    great    corporations    is 
199 


Unpopular  Government  in  the  United  States 

beyond  the  actual  comprehension  of  the  human 
intelligence.  Opportunity  is  no  longer  any- 
where near  equal  and  many  start  the  race  in 
life  with  a  lead  which  puts  them  out  of  sight 
of  all  but  a  very  few.  The  result  is  that  a 
constantly  increasing  number  of  people  think 
not  in  terms  of  property  and  the  interests  of 
property,  but  as  individuals,  and  in  many 
instances  as  one  of  a  collection  of  individuals. 
They  have  begun  to  consider  whether  the 
state  is  so  run  and  legislation  so  framed  that 
they  as  individuals,  or  as  one  of  a  collective 
organization  of  individuals  similarly  situated, 
are  enabled  to  live  satisfactorily.  They  are 
readily  inclined  to  beHeve  that  specially  organ- 
ized property  interests  are  attempting  to  make 
the  laws,  or  to  block  the  making  of  laws  in  the 
interests  of  property  and  against  the  interests 
of  the  individual,  either  singly  or  in  organized 
groups.  Such  specially  organized  property  in- 
terests have  become  Hable  to  persistent  and 
sometimes  vicious  and  retaHatory  attacks  by  a 
majority  of  the  electorate.  The  fact  that  this 
majority  is  composed  of  persons  who  are,  to 


The  Second-Chamber  Problem 


some  extent,  holders  of  property  does  not  pre- 
vent them  from  thinking  in  terms  of  their 
position  as  individuals.  Thus  spectacular 
onslaughts  by  the  electorate  have  been  made 
upon  such  organized  property  interests  as  rail- 
roads, pubhc-service  corporations,  and  mine- 
owners.  Legislation  to  promote  social  justice 
and  in  the  actual  or  pretended  exercise  of  the 
pohce  power  may  be  in  effect  an  attack  upon 
some  legitimate  business.  Yet  the  general  ob- 
ject of  such  acts  will  receive  an  overwhelming 
popular  approval. 

Step  by  step  with  the  development  of  this 
antagonism  in  the  state  between  specially 
organized  property  interests  and  the  individual 
has  grown  the  effort  of  such  interests  to  com- 
bine for  protection  from  the  electorate.  Natu- 
rally they  use  all  the  means  at  their  disposal  in 
the  governmental  scheme  to  secure  that  pro- 
tection. The  governor's  veto,  however,  has 
proved  of  less  and  less  value,  for  the  governor 
is  so  conspicuous  an  officer  as  frequently  to  be 
a  popular  choice.  Property  interests  have  fallen 
back  upon  the  legislative  lobby,  an  alliance  wdth 


Unpopular  Government  in  the  United  States 

the  extra-legal  government,  and  the  constant 
urging  of  the  courts  to  go  farther  and  farther 
in  the  exercise  of  their  veto  power  over  legis- 
lation. The  lobby  has  gained  power  through 
the  assistance  and  sanction  of  the  leaders  of 
the  extra-legal  government.  That  government 
has  been  stimulated  to  the  highest  efficiency 
and  the  greatest  activity  by  reason  of  the 
prizes  coming  to  its  leaders  as  the  result 
of  their  alliance  and  partnership  with  col- 
lectively organized  property  interests.  As  a 
last  resort  the  courts  have  again  and  again 
been  importuned  to  veto  legislation  inimical 
to  specially  organized  property  interests, 
and  all  property  interests  when  attacked 
at  once  become  specially  organized  at  the 
point  of  attack.  These  importunities  come 
in  the  form  of  arguments  to  the  court  on 
behalf  of  property  interests  that  are  un- 
favorably affected  by  the  legislation  in  ques- 
tion. Frequently  the  act  which  they  com- 
plain of  has  been  badly  drawn  and  is  really 
vicious  and  unfair  in  some  of  its  workings, 
although  the  main  principle  may  be  sound. 

203 


The  Second-Chamber  Problem 


This  intensifies  the  appeal  of  the  individual 
for  its  overthrow.  Such  complaints  from 
the  interests  affected,  together  with  the  social 
and  economic  theories  of  the  judges  them- 
selves, and  no  doubt  in  some  cases,  the 
direct  influence  of  the  extra-legal  govern- 
ment, have  been  pressed  upon  the  judges 
in  an  effort  to  cause  them  to  abandon  the 
academic,  theoretical,  and  bloodless  function 
which  was  conceded  to  them  when  the  power 
of  the  courts  to  declare  acts  of  the  legislature 
unconstitutional  originally  was  asserted,  and 
to  expand  this  power  so  as  to  present  an 
efficient  barrier  to  the  onslaughts  of  the  pro- 
letariat upon  property  interests.  At  times  and 
to  a  very  considerable  extent  state  courts 
have  yielded  to  this  pressure.  It  is  the  de- 
mand of  specially  organized  property  inter- 
ests for  protection  and  fair  treatment  and  the 
inclination  of  the  courts  to  give  it  that  has 
presented  in  the  last  thirty  years  so  long  a 
list  in  every  state  of  legislative  acts  held  un- 
constitutional because  they  took  the  liberty  or 

property  of  some  person  mthout  due  process 
203 


Unpopular  Government  in  the  United  States 

of  law.^  It  is,  no  doubt,  the  desire  of  these 
same  property  interests  that  the  clause  of 
the  fourteenth  amendment  of  the  federal 
constitution,  which  provides  that  "no  state 
shall  pass  any  law  depriving  any  person  of 
life,  liberty,  or  property  without  due  process 
of   law,"    may   in   the   hands  of   the  United 

'  The  results  reached  by  the  Illinois  Supreme  Court,  especially 
when  contrasted  with  those  reached  by  the  United  States  Supreme 
Court,  exhibit  an  extreme  exercise  of  the  power  of  courts  to  hold 
legislation  void  because  it  takes  the  property  or  liberty  of  indi- 
viduals without  due  process  of  law. 

Since  1886  the  Illinois  Supreme  Court  has  held  void  acts  of 
the  legislature  compelling  mine-owners  to  weigh  coal  mined  and  to 
pay  the  miners  on  the  basis  of  such  weight,  because  such  acts  took 
the  mine-owner's  liberty  and  property  without  due  process  of  law 
contrary  to  the  provisions  of  the  state  constitution:  Millett  v.  The 
People,  117  111.  294  (1896);  Ramsey  v.  The  People,  142  111.  380 
(1892);  Z?arJi«g  V.  r/fe  Peo/>/e,  160  111.  459  (1896).  The  United 
States  Supreme  Court,  however,  has  held  that  a  similar  act  from 
Arkansas  did  not  violate  the  "life,  liberty,  or  property"  clause  of 
the  fourteenth  amendment:  McLean  v.  Arkansas,  211  U.S.  539 
(1908). 

Since  1892  the  Illinois  Supreme  Court  has  held  void  state  acts 
regulating  the  keeping  of  truck  stores  by  owners  of  coal  mines  and 
factories,  because  they  deprived  such  owners  of  liberty  and 
property  without  due  process  of  law,  contrary  to  the  state  con- 
stitution: Frorer  v.  The  People,  141  111.  171  (1892);  Kellyville 
Coal  Co.  V.  Harrier,  207  111.  624  (1904).  In  1886  the  Pennsylvania 
Supreme  Court  held  void  an  act  which  prohibited  the  payment  of 
wages  to  miners  in  anything  but  money:  Godcharles  v.  Wigeman, 
113  Pa.  431  (1886).  Yet  the  United  States  Supreme  Court  holds 
that  such  acts  are  not  in  violation  of  the  "life,  liberty,  or  prop- 

204 


The  Second-Chamber  Problem 


States  Supreme  Court  afford  the  same  prac- 
tical and  effective  protection  to  property 
interests  which  similar  clauses  in  the  state 
constitutions  have  done  through  the  action 
of  state  supreme  courts. 

Such  is  the  actual  situation  into  which  it 
is  now  proposed  to  project  alterations  in  our 

erty"  clause  of  the  fourteenth  amendment:  Knoxville  Coal  Co.  v. 
Harrison,  183  U.S.  13  (1901). 

In  1896  the  Illinois  Supreme  Court  held  void  the  barbers' 
Sunday  law,  which  forbade  the  employment  of  barbers  on  Sunday, 
because  the  act  violated  the  "life,  liberty,  or  property"  clause  of 
the  state  constitution:  Eden  v.  The  People,  161  111.  296  (1896). 
But  the  United  States  Supreme  Court  sustained  a  like  act  from 
Minnesota,  declaring  that  it  did  not  violate  the  "life,  liberty,  or 
property"  clause  of  the  federal  constitution:  Petit  v.  Minnesota, 
177  U.S.  164  (1898). 

In  1900  the  Illinois  Supreme  Court  held  void  the  state  flag  law 
which  prohibited  the  use  of  the  American  flag  for  advertising  pur- 
poses, because  it  deprived  advertisers  of  liberty  and  property 
without  due  process  of  law,  contrary  to  the  provision  of  the  state 
constitution:  Ruhstrat  v.  The  People,  185  lU.  133  (1900).  The 
United  States  Supreme  Court,  however,  sustained  a  similar  act 
from  Nebraska  holding  that  it  was  not  in  violation  of  the  "life, 
liberty,  or  property"  clause  of  the  fourteenth  amendment: 
Halter  v.  Nebraska,  205  U.S.  34  (1907). 

In  1908  the  Illinois  Supreme  Court  held  void  the  bulk  sales  acts 
regulating  sales  of  stocks  of  goods  in  bulk  otherwise  than  in  the 
usual  course  of  trade,  because  it  violated  the  "Ufe,  liberty,  or 
property"  clause  of  the  state  constitution:  Off  6°  Co.  v.  Morehead, 
23s  111.  40  (190S).  But  the  United  States  Supreme  Court  has  held 
similar  statutes  from  Connecticut  and  Michigan  valid  and  not  in 
violation  of  the  "life,  liberty,  or  property"  clause  of  the  fourteenth 

205 


Unpopular  Government  in  the  United  States 

scheme  of  government  which  will  eliminate 
extra-legal  government  by  politocrats  and 
thereby  lessen,  if  not  entirely  do  away  with, 
the  lobby  which  is  backed  by  the  extra-legal 
government.  The  same  changes  are  to  give 
us  a  single  legislative  chamber  which  shall 
be  really  representative,  highly  sensitive,  and 
quickly  responsive  to  the  popular  will.    Very 

amendment:  Lemieux  v.  Young,  211  U.S.  489  (1908);  Kidd, 
Daier  6°  Price  Co.  v.  Musselman  Grocer  Co.,  217  U.S.  461  (1910). 

In  1909  the  Illinois  Supreme  Court  held  void  the  loan-shark 
act  regulating  the  assignment  of  future  wages  as  security  for 
money  borrowed  and  requiring  the  assignment  to  be  recorded  and 
signed  by  the  wife.  Again  the  reason  was  that  the  "life,  liberty, 
or  property"  clause  of  the  state  constitution  was  violated: 
Massie  v.  Cessna,  239  111.  352  (1909).  But  the  United  States 
Supreme  Court  has  sustained  a  similar  act  passed  in  Massachu- 
setts on  the  ground  that  it  did  not  infringe  the  "life,  liberty,  or 
property"  clause  of  the  fourteenth  amendment:  Mutual  Loan 
Company  v.  Marlcll,  222  U.S.  225  (1911). 

The  lUinois  Supreme  Court  has  also  held  void,  as  infringing  the 
"Ufe,  liberty,  or  property"  clause  of  the  state  constitution,  the 
following  acts:  (a)  An  act  penalizing  employers  in  the  importa- 
tion of  workmen  from  another  state  by  reason  of  deceit  touching 
the  matter  of  the  existence  of  a  strike  or  the  sanitary  condition  of 
the  employment:  Josma  v.  Western  Steel  Car  Co.,  249  lU.  508 
(1911);  compare,  however,  Williams  v.  Fears,  179  U.S.  270;  {b) 
An  act  providing  that  no  public  contractor  shall  employ  alien 
labor  on  any  public  work:  City  of  Chicago  v.  Hulbert,  205  lU.  346 
(1903).  But  in  Atkin  v.  Kansas,  191  U.S.  207  (1903),  the  United 
States  Supreme  Court  held  vaHd  an  act  of  Kansas  making  it  a 
criminal  offense  for  a  public  contractor  to  permit  or  require  an 
employee  to  perform  labor  upon  public  work  in  excess  of  eight 
206 


The  Second-Chamher  Problem 


naturally  property  interests,  particularly  those 
most  frequently  subject  to  legislative  attack, 
will  wish  to  know  how  they  are  to  be  pro- 
tected from  the  onslaughts  of  the  proletariat 
or  from  the  hasty  judgments  of  an  ordinarily 
conservative  and  fair  majority.  Property  can 
point  to  the  fact  that  the  commonwealth 
under  Cromwell  gave  up  the  single  legislative 
chamber  and  reverted  to  the  bicameral  plan;' 

hours  each  day;  (c)  The  miners'  washroom  act,  requiring  owners 
of  mines  to  provide  a  washroom  at  the  top  of  the  mine  for  the  use 
of  the  miners:  Starne  v.  The  People,  222  111.  189  (1906);  {d)  An 
act  prohibiting  more  than  six  persons  sleeping  in  one  room  in  a 
lodging-house:  Bailey  v.  The  People,  190  111.  28  (1901);  (e)  An 
act  prescribing  an  eight-hour  day  for  women  in  certain  occupa- 
tions: Ritchie  v.  The  People,  155  111.  98  (1895).  This  case  was 
approved  in  Ritchie  v.  Wayman,  244  111.  509  (1911),  which,  how- 
ever, held  a  ten-hour  labor  law  for  women  in  certain  occupations 
vaUd,  following  the  ruling  of  the  U.S.  Supreme  Court  sustaining  a 
similar  act  passed  in  Oregon:  Midler  v.  Oregon,  208  U.S.  412 
(1908).  It  seems  entirely  probable  from  its  opinion  in  the  last- 
mentioned  case  that  the  United  States  Supreme  Court  would  have 
held  vaUd  the  act  condemned  by  the  Illinois  Supreme  Court  in 
Ritchie  v.  The  People,  supra. 

^  "The  proposal  for  a  revived  Second  Chamber  was,  on  the  con- 
trary, carried  with  an  une.xpected  degree  of  unanimity.  The 
Protector  pressed  it  strongly  upon  the  officers.  'I  teU  you,'  he 
said,  '  that  unless  you  have  some  such  thing  as  a  balance  we  can- 
not be  safe.  Either  you  will  encroach  upon  our  civil  liberties  by 
excluding  such  as  are  elected  to  serve  in  Parliament — next  time 
for  aught  I  know  you  may  exclude  four  hundred — or  they  wUI 
encroach  upon  our  religious  liberty.  By  the  proceedings  of  this 
207 


Unpopular  Government  in  the  United  States 

that  the  single  chamber  adopted  by  the 
French  Constitution  of  1791  was  abandoned 
for  a  bicameral  arrangement  in  1795,  and 
never  again,  except  for  a  brief  space  under 
the  Second  Republic  of  1848,  did  France 
renew  the  experiment.  It  can  point  to  the 
opinions  of  Mill/   Lecky,^   Maine,^  Bagehot,"* 

Parliament  you  see  they  stand  in  need  of  a  check  or  balancing 
power,  for  the  case  of  James  Naylor  might  happen  to  be  your  case. 
By  the  same  law  and  reason  they  punished  Naylor  they  might 
punish  an  Independent  or  an  Anabaptist.  By  their  judicial 
power  they  fall  upon  life  and  member,  and  doth  the  Instrument 
enable  me  to  control  it?  This  Instrument  of  Government  will 
not  do  your  work.'" — J.  A.  R.  Marriott,  Second  Chambers,  p.  38. 

'  "A  majority  in  a  single  assembly,  when  it  has  assumed  a  per- 
manent character — when  composed  of  the  same  persons  habitually 
acting  together,  and  always  assured  of  victory  in  their  own  House 
— easily  becomes  despotic  and  overweening,  if  released  from  the 
necessity  of  considering  whether  its  acts  will  be  concurred  in  by 
another  constituted  authority.  The  same  reason  which  induced 
the  Romans  to  have  two  consuls,  makes  it  desirable  there  should 
be  two  chambers;  that  neither  of  them  may  be  exposed  to  the 
corrupting  influence  of  undivided  power,  even  for  the  space  of  a 
single  year." 

»"0f  all  the  forms  of  government  that  are  possible  among 
mankind  I  do  not  know  any  which  is  likely  to  be  worse  than  the 
government  of  a  single  omnipotent  democratic  chamber." 

3  "What,  then,  is  expected  from  a  well  constituted  Second 
Chamber  is  not  a  rival  infallibilily,  but  an  additional  security.  It 
is  hardly  too  much  to  say  that,  in  this  view,  almost  any  Second 
Chamber  is  better  than  none." 

4  "With  a  perfect  Lower  House  it  is  certain  that  an  Upper 
House  would  be  scarcely  of  any  value.     If  we  had  an  ideal  House 

208 


The  Second-Chamber  Problem 


and  Sidgwick^  in  favor  of  the  second-chamber 
plan  and  to  the  well-nigh  universal  practice  of 
such  a  method  of  constituting  the  legislature. 
Furthermore,  the  second  chambers  established 
outside  of  the  United  States  and  perhaps 
Austraha  have  in  practice  acted  on  the  whole 
as  the  representatives  of  property  interests 
and  the  protectors  of  those  interests  from  the 
acts  of  the  popular  house.  These  experiences 
may  contain  no  lesson  for  us  and  the  opinions 
referred  to  may  be  hopelessly  reactionary,  but 
they  would  at  least  seem  to  justify  property 
in  humbly  asking  what  is  to  be  done  to  pro- 
tect it  from  the  actions  of  the  single  popular 

of  Commons  perfectly  representing  the  nation,  always  moderate, 
never  passionate,  abounding  in  men  of  leisure,  never  omitting  the 
slow  and  steady  forms  necessary  for  good  consideration,  it  is 
certain  that  we  should  not  need  a  higher  chamber.  The  work 
would  be  done  so  well  that  we  should  not  want  any  one  to  look 
over  or  revise  it.  And  whatever  is  unnecessary  in  government, 
is  pernicious But  though  beside  an  ideal  House  of  Com- 
mons the  Lords  would  be  unnecessary,  and  therefore  pernicious, 
beside  the  actual  House  a  revising  and  leisured  legislature  is 
extremely  useful,  if  not  quite  necessary." 

'  "The  main  end  for  which  a  Senate  is  constructed  [is]  that  all 
legislative  measures  may  receive  a  second  consideration  by  a  body 
different  in  character  from  the  primary  representative  assembly,  and 
if  possible  superior  or  supplementary  in  intellectual  qualifica- 
tions." 

209 


Unpopular  Government  in  the  United  States 

legislative  chamber  in  which  is  united  the 
executive  and  legislative  power. 

There  are  two  ways  at  least  of  meeting  this 
question: 

The  first  is  to  do  nothing  at  all.  Property  is 
to  be  persuaded  that  it  is  in  the  long  run 
entirely  safe  at  the  hands  of  a  legislature  which 
is  really  expressive  of  the  will  of  the  majority 
and  sensitive  to  that  will;  that  property  has 
money  with  which  to  advocate  its  cause  and 
can  buy  newspapers,  circulate  pamphlets,  and 
hire  speakers;  that  the  mass  of  the  electorate 
are  in  general  entirely  fair  and  conservative 
toward  property;  that  property  is  protected 
by  the  courts  and  by  constitutional  provisions 
prohibiting  the  taking  of  property  without  due 
process  of  law  from  sudden  and  violent  legis- 
lative action. 

This  attitude  will,  however,  hardly  satisfy 
property  interests.  How  they  will  be  treated 
by  a  single  legislative  chamber  representing 
the  popular  will  cannot  be  determined  till  the 
experiment  is  actually  tried.  All  a  priori 
views  are  merely   speculative  opinions  made 


The  Second-Chamber  Problem 


up  from  data  wholly  incomplete  and  incon- 
clusive. Property  interests  will  naturally  re- 
gard it  as  unfair  that  they  should  take  the 
risk  of  a  new  experiment  in  government.  Nor 
will  property  be  satisfied  with  protection  by 
the  courts  as  now  constituted.  The  fact  that 
judges  are  for  the  most  part  elected  by  popu- 
lar vote,  that  the  recall  of  judges  and  of 
judicial  decisions  is  being  \dolently  advocated, 
will  hardly  tend  to  reassure  property  in  the 
protection  from  the  electorate  by  the  courts 
to  which  it  beheves  itself  fairly  entitled. 

The  second  method  of  meeting  the  demand 
of  property  for  protection  from  the  single 
popular  legislative  chamber  is  to  give  it  a  direct 
representation  in  the  legislature  and  a  voice  in 
the  enactment  of  the  laws  at  the  time  they  are 
in  the  process  of  making.  The  representatives 
of  property  should  have  power  to  propose  legis- 
lation, to  amend  that  which  comes  from  the 
popular  legislative  chamber,  and  to  enter  into 
compromises  respecting  it.  They  should  have 
in  addition  at  least  a  limited  veto  on  the  pas- 
sage of  laws.    The  exercise   of  such  powers 


Unpopular  Government  in  the  United  States 

should  be  open  and  legal,  but  at  the  same  time 
enthely  subordinate  to  the  power  of  the  rep- 
resentatives of  the  electorate  in  the  single  pop- 
ular chamber.  This  requires  the  establishment 
of  a  second  legislative  chamber  in  which  the 
representatives  of  property  interests  shall  sit. 
The  most  direct  method  of  constituting  such 
a  second  chamber  is  to  divide  the  state  into  as 
many  senatorial  districts  as  there  are  to  be 
members  of  the  second  chamber — let  us  say 
one-fourth  of  the  number  of  the  popular  house. 
The  districts  should  be  created  on  the  basis  of 
an  equal  amount  of  taxable  property  in  each. 
One  representative  should  be  sent  from  each 
district.  One  vote  should  be  given  each  tax- 
payer in  the  district  who  during  the  preceding 
year  had  paid  a  given  amount  or  less  in  taxes. 
Each  taxpayer  should  have  one  vote  in  addi- 
tion for  each  similar  amount  which  he  paid  in 
taxes,  and  should  vote  as  a  taxpayer,  whether 
a  corporation  or  a  non-resident  citizen  of  the 
United  States.  It  might  be  desirable  to  elect 
the  senators  at  large  from  a  few  districts,  the 
voting  by  taxpayers  to  be  according  to  the 


The  Second-Chamber  Problem 


Hare  plan,  thus  allowing  groups  of  taxpayers 
to  send  their  representatives. 

A  less  direct  method  would  be  to  fill  the 
second  chamber  with  members  holding  for  life 
and  appointed  by  the  executive  council  of 
state.  The  natural  tendency  of  such  a  Hfe 
tenure  of  office,  coupled  with  appointment  from 
among  successful  men,  is  to  produce  a  conserva- 
tive second  chamber.  If,  however,  one  party 
is  in  power  for  a  long  period  it  also  results  in 
the  packing  of  the  second  chamber  by  one 
party  for  its  own  purposes  and  this  brings 
renewed  party  strife  and  legislative  deadlocks.^ 
Such  a  second  chamber  will,  however,  in  the 
long  run,  it  is  beheved,  represent  property 
interests. 

It  would  be,  of  course,  of  vital  importance 
that  a  second  chamber  constituted  in  either 
of  the  above  ways  be  kept  in  strict  subordi- 
nation to  the  chamber  which  represents  the 
electorate  at  large.  The  principal  means  for 
accomplisliing  this  has  aheady  been  provided 

=■566  J.  A.  R.  Marriott,  "History  of  the  Canadian  Second 
Chamber"  in  Second  Chambers,  pp.  145  ff. 

213 


Unpopular  Government  in  the  United  States 

for  in  the  plan  for  the  union  of  the  executive 
and  legislative  functions  in  the  lower  house. 
The  fact  that  the  entire  executive  power  of 
the  state  is  placed  in  the  hands  of  the  leaders 
of  the  legislative  majority  of  the  lower  house 
must  always  make  that  the  more  powerful 
organ  of  government.  But  we  can  go  farther. 
It  may  be  provided  that  the  second  chamber 
shall  never  have  the  right  to  reject  an  appro- 
priation bill.  This  will  prevent  its  ever  inter- 
fering with  the  conduct  of  the  government 
through  the  collection  of  taxes  and  the  expendi- 
ture of  money.  Then  a  suitable  method  of 
"steam-rollering"  the  second  chamber  with 
regard  to  the  passage  of  legislation  may  be 
provided  as  follows: 

After  the  rejection  of  any  bill  passed  by  the  lower 
house  in  two  successive  sessions,  the  vote  upon  such  bill 
shall  be  taken,  with  both  branches  of  the  legislature 
sitting  in  joint  session  and  a  majority  of  the  votes  in 
such  joint  session  shall  be  sufficient  to  give  the  bill  the 
efifect  of  law. 

By  such  devices  the  second  chamber  repre- 
senting property  interests  as  such  will  have 
214 


The  Second-Chamher  Problem 


been  given  only  a  properly  limited  veto  power 
upon  legislation.  At  the  same  time,  as  a  sec- 
ond chamber,  it  will  have  power  to  approve 
that  which  passes  the  popular  house  and  to 
enter  into  compromises  respecting  it.  The 
second  chamber  can  undertake  a  popular  de- 
fense of  its  action.  These  are  important  privi- 
leges. They  aid  in  the  production  of  laws 
which  are  fair  to  all.  On  the  other  hand,  the 
second  chamber  is  equally  clearly  cut  off  from 
ever  gaining  any  ascendancy  over  that  branch 
of  the  legislature  which  represents  and  is  sensi- 
tive to  the  popular  will. 

We  may,  however,  in  the  establishment  of  a 
second  chamber  representing  property  interests 
proceed  with  still  greater  indirectness  and  the 
utmost  caution  along  a  path  on  which  we  are 
aheady  started. 

Our  highest  state  judicial  tribunal  is  already 
possessed  of  a  substantial  veto  upon  legisla- 
tion in  the  interests  of  property  by  reason  of 
its  power  to  declare  acts  of  the  legislature 
void  because  they  take  property  "without 
due  process  of  law."    There  are  few,  if  any, 

215 


Unpopular  Government  in  the  United  States 

constitutions  today  in  the  United  States  which 
do  not  contain  other  prohibitions  upon  the 
legislature  under  which  acts  may  be  declared 
unconstitutional  in  the  interests  of  property. 
The  courts  have  aheady  gone  beyond  the  mere 
academic  function  of  declaring  acts  of  the 
legislature  void  only  when  they  are  utterly 
irrational  and  arbitrary  in  their  discriminatory 
operation.  The  courts  now  boldly  perform  the 
function  of  protecting  property  from  hasty,  ill- 
advised,  and  unjust  legislation.  Heretofore,  at 
least,  public  opinion  has  sustained  the  courts 
in  the  exercise  of  this  function.  The  placing 
of  this  power  in  the  hands  of  judges  has  insured 
its  exercise  by  men  who  at  least  are  not  preju- 
diced against  property  and  are  inchned  to  give 
it  a  fair  hearing.  Judges  must  be  selected  from 
among  lawyers,  and  hence  must  be  men  of  some 
education  and  intellectual  attainments.  Since 
the  main  business  of  judges  is  to  decide  litigated 
cases  arising  between  individuals,  there  is  very 
naturally  a  demand  that  judges  be  selected 
from  among  the  leaders  at  the  bar.  This  means 
that  there  is  a  constant  and  legitimate  pressure 

?l6 


The  Second-Chamber  Problem 


in  favor  of  the  selection  of  men  who  will 
naturally  give  property  as  full  protection  as 
the  power  of  the  court  will  permit.  Even 
lawyers  of  only  fair  success  and  ability  in 
fifteen  or  twenty  years  of  practice  will  acquire 
the  property  point  of  view.  Practically  all 
lawyers  live  in  an  atmosphere  of  enforcement 
of  property  interests.  They  cannot  avoid 
being  educated  to  see  the  unfairness  of  legis- 
lation which  affects  unfavorably  property  in- 
terests. It  is  not  improbable  that  among  those 
who  secure  seats  in  the  highest  court  some  will 
regard  themselves  as  specially  appointed  to 
stand  between  property  and  the  proletariat, 
and  will  do  so  with  great  determination,  vigor, 
and  judicial  independence.  Once  selected,  the 
judge  in  our  highest  courts  holds  for  a  longer 
term  than  other  judges,  and  this  fact  fortifies 
him  in  a  determination  that  property  interests 
shall  be  dealt  with  fairly.  All  this  has  been 
accompHshed  without  the  electorate  at  large 
fuUy  perceiving  what  has  happened.  The  voter 
is  still  submissive  to  the  apparently  fair  propo- 
sition that  only  lawyers  of  excellent  standing 
217 


Unpopular  Government  in  the  United  States 

and  ability  should  be  elected  to  the  highest 
court  of  the  state.  Little  does  he  understand 
that  success  in  selecting  such  men  has  estab- 
lished the  rudiments  of  a  second  chamber  which 
is  designed  to  protect  property. 

The  present  arrangement,  however,  is  on  the 
verge  of  some  reorganization.  It  is  plain  that 
the  judicial  veto  is  too  drastic.  It  may  stop 
aU  desired  legislation  along  a  given  line  till  the 
constitution  is  changed.  The  difficulties  of 
securing  the  desired  amendment  may  not  be 
surmounted  for  many  years.  Hence  has  arisen 
the  plan  for  "  steam-roUering  "  the  judicial  veto 
by  a  constitutional  provision  that  whenever  an 
act  of  the  legislature  has  been  passed  at  two 
different  sessions  and  sustained  by  the  electorate 
upon  a  referendum,  it  shall  be  deemed  not  to 
infringe  the  "life,  liberty,  and  property"  clause 
of  the  state  constitution.'  The  electorate  to- 
day is  also  becoming  increasingly  aUve  to  the 

'  The  phrase  "recall  of  judicial  decisions"  is  unfortunate,  since 
it  implies  that  the  Judicial  function  is  taken  over  by  the  electorate 
and  the  judicial  decision  reversed,  when  all  that  is  done  is  to 
amend  the  constitution  so  that  the  basis  for  the  judicial  decision 
is  taken  away  in  all  subsequent  litigation.     The  better  phrase,  it 

218 


The  Second-Chamber  Problem 


fact  that  the  courts,  in  holding  legislation  un- 
constitutional, have  really  abandoned  a  purely 
judicial  function  and  have  undertaken  in  a 
degree  the  poHtical  function  of  a  second  cham- 
ber in  protecting  property  interests  from  the 
legislature.  True,  the  action  of  the  court  is 
in  form  still  judicial.  It  purports  to  apply  the 
constitutional  prohibition  to  the  legislation  in- 
volved in  the  particular  Htigated  case  arising 
between  contending  parties.  But  the  court's 
decision,  once  made,  is  now  acquiesced  in  by  all 
departments  of  the  government  and  all  public 
ojficers,  as  a  complete  disposition  of  the  act 
held  void.  The  compiler  of  the  statutes  omits 
it  from  the  compiled  laws  as  being  no  law  at  all. 
The  court  does  in  fact  veto  out  of  existence  an 
act  of  the  legislature  for  the  entire  state  govern- 
ment and  the  inhabitants  of  the  state.  It  does 
this  also  in  response  to  a  very  general  prohibi- 
tion upon  the  legislature,  such  as  that  "no 

is  believed,  is  the  one  used  in  the  text,  namely,  "steam-rollering 
the  judicial  veto."  See  Albert  M.  Kales,  "The  Recall  of  Judicial 
Decisions,"  lUinois  State  Bar  Association  Proceedings,  1912,  pp. 
203-18;  Herbert  Pope,  "The  Recall  of  Judicial  Decisions — A 
Criticism,"  7  Illinois  Law  Review,  p.  149. 

219 


Unpopular  Government  in  the  United  States 

person  shall  be  deprived  of  property  without 
due  process  of  law" — a  phrase  so  vague  that 
it  gives  the  court  a  discretion  which  approaches 
that  of  the  legislature  in  considering  whether  a 
proposed  act  is  wise  and  fair  to  property  or 
not.  The  disclosure  to  the  electorate  that 
courts,  in  using  their  judicial  veto,  are  really 
exercising  a  great  poHtical  power  has  resulted 
in  an  increasing  demand  that  judges  should 
be  elected  as  political  officers;  that  their  eco- 
nomic and  social  bias  be  known — in  short, 
that  they  have  a  poHtico-judicial  platform  and 
be  subject  to  the  recall. 

The  tendency  thus  disclosed  to  treat  the 
judges  of  our  highest  courts  as  political  officers 
whose  social  and  economic  bias  regarding  legis- 
lation must  be  known  in  advance  is,  of  course, 
ruinous  to  the  performance  of  their  ordinary 
judicial  functions.  The  electorate  will  obtain 
what  it  wants,  and  perhaps  what  it  may  be 
entitled  to,  from  the  judges,  but  at  the  expense 
of  the  disruption  of  the  whole  judicial  system. 
That  would  indeed  be  a  calamity.  Disorganiza- 
tion in  the  administration  of  justice,  due  to  the 


The  Second-Chamber  Problem 


popular  attitude  toward  judges  and  the  courts, 
is  even  now  beginning  to  be  felt.  It  will  very 
soon  become  apparent  that  in  the  rebuilding 
of  our  judicial  system  courts  which  handle 
the  general  mass  of  litigation  must  be  con- 
fined strictly  to  judicial  functions.  They  must 
administer  the  law  as  established  by  the 
legislature  and  always  in  subordination  to 
the  legislature.  If,  then,  we  are  to  keep 
our  present  plan  of  protecting  property  by 
means  of  a  court  and  a  constitution,  a  special 
court  of  last  resort  must  be  estabHshed  for 
deciding  all  constitutional  questions,  the  va- 
lidity of  aU  municipal  ordinances,  and  all 
other  classes  of  cases  where  the  issue  is 
drawn  between  the  electorate  acting  tlnrough 
a  popular  legislative  body,  and  property  in- 
terests. In  order  that  the  veto  of  the  court 
may  not  be  too  drastic  in  its  effect,  there 
should  be  given  to  the  single  chamber  legis- 
lature the  power  to  "steam-roller"  its  judi- 
cial veto  by  a  second  passage  of  the  act  after 
a  suitable  interval  and  its  approval  on  a 
referendum.     Thus  we  shall  have  evolved  a 


Unpopular  Government  in  the  United  States 

practicable  second   chamber  protecting  prop- 
erty interests. 

It  would  be  only  a  short  step  to  provide  for 
the  submission  of  all  acts  to  such  a  court  before 
they  became  laws,  with  a  right  on  the  part  of 
htigants  to  bring  up  the  question  of  the  validity 
of  the  acts  as  upon  a  rehearing.  Then  it  would 
seem  most  reasonable  that  when  an  act  was 
presented  to  the  special  court  of  appeal  before 
it  became  law  and  found  to  be  unconstitu- 
tional, the  court  should  have  power  to  redraft 
the  act  so  that  it  would  accompHsh  what  was 
desired  so  far  as  the  same  was  permitted  by 
the  constitution.  If  ultimately  the  right  of 
litigants  to  attack  the  vahdity  of  any  act 
which  had  passed  both  the  legislature  and  the 
court  should  be  cut  off,  and  if  the  constitu- 
tional Hmitations  upon  the  legislature  should 
entirely  disappear,  while  at  the  same  time  the 
members  of  the  body  which  scrutinized  the  acts 
passed  by  the  popular  chamber  were  appointed 
by  the  council  of  state  and  held  office  for  a 
considerable  period,  we  should  have,  in  what 
started  as  a  judicial  tribunal,  a  real  second 


The  Second-Chamber  Problem 


chamber  functioning  like  other  second  chambers 
in  furnishing  an  additional  security  against  legis- 
lation which  was  unfair  to  property  interests.^ 

'  Ramsay  Muir,  in  Peers  and  Bureaucrats,  has  a  suggestion  for 
a  second  chamber  that  should  not  be  ignored.  He  finds  the  evil 
of  a  popular  chamber  containing  a  large  number  of  representatives 
from  wieldy  districts  selected  by  pluralities  merely  to  be  that  it 
makes  government  by  party  a  necessity.  The  parties  tend  to 
form  themselves  into  two  great  camps,  with  two  great  programs. 
The  electorate  has  been  driven  to  choose  one  program  or  the  other, 
though  if  all  shades  of  opinion  could  be  examined  some  part  of 
each  program  would  not  receive  a  majority  of  votes.  Party 
discipline,  however,  becomes  so  strict  that  the  first  chamber  can 
put  through  every  part  of  the  party  program.  The  real  need  in 
the  second  chamber,  he  declares,  is  to  secure  members  of  inde- 
pendent views  who  can  express  their  opinions  freely  without  fear 
of  the  loss  of  their  seat  as  a  punishment  for  having  been  independ- 
ent, and  which  will  represent  the  different  shades  of  opinion  on 
the  part  of  the  electorate.  He,  therefore,  advocates  the  selection 
of  members  of  the  second  chamber  by  the  method  of  proportional 
representation  by  the  single  transferable  vote  according  to  the 
Hare  plan. 

The  difficulty  with  this  proposal  is  that  property  interests 
as  such  are  not  represented  except  according  to  the  numerical 
strength  of  property  owners.  In  fact,  Mr.  Muir  expressly  repudi- 
ates any  idea  of  creating  a  second  chamber  based  upon  an  aristoc- 
racy or  the  middle  class  of  income  taxpayers.  His  plan  might 
also  be  expected  to  involve  a  contest  as  to  which  chamber  really 
represented  the  electorate.  The  second  chamber  as  proposed  by 
Mr.  Muir  would  certainly  be  a  "rival  infallibility"  and  hopeless 
deadlocks  might  be  expected.  There  would  then  be  the  usual 
American  spectacle  of  bickering  between  the  executive  as  repre- 
sented by  the  executive  council  or  cabinet  of  the  first  chamber, 
and  the  second  chamber  representing  the  electorate.  On  the 
whole  the  union  of  the  executive  and  the  legislative  powers  so 
much  to  be  desired  would  be  broken  in  upon. 
223 


Unpopular  Government  in  the  United  States 

It  is  not  the  purpose  of  the  present  writer 
to  advocate  either  the  second  chamber  repre- 
senting property  interests  or  the  estabhshment 
of  a  unicameral  legislature  in  which  all  legisla- 
tive and  executive  powers  are  united  and  which 
is  extremely  sensitive  to  the  popular  will  with- 
out any  special  protection  to  property  interests 
other  than  that  which  their  numerical  strength 
and  property  holding  gives  them.  It  is  enough 
that  the  difficulties  of  the  situation  be  faced 
and  the  several  general  lines  of  procedure  be 
indicated.  It  will  be  time  enough  to  have 
opinions  when  we  are  brought,  by  constitution- 
making,  nearer  to  the  practical  settlement  of 
the  difficulty. 


224 


CHAPTER  XVn 

METHODS  OF  SELECTING  AND  RETIRING 
JUDGES 

Justice  is  not  administered  by  an  executive 
head  planning  how  a  large  number  of  employees 
shall  do  clerical  work  or  tend  machines.  Its 
ultimate  source  is  in  the  operation  of  the  mind 
of  the  judge  upon  certain  facts  presented  to 
him  in  a  judicial  investigation.  The  power 
of  the  state  to  preserve  order  and  settle  the 
rights  of  parties  is  subject  to  be  invoked  in 
one  way  or  another,  according  as  the  judge's 
mind  reacts  and  operates.  Clearly,  therefore, 
the  way  in  which  the  minds  are  selected  for 
this  important  public  duty  and  the  way  they 
are  retired  is  of  the  first  importance  to  the  due 
administration  of  justice. 

It  may  be  that  in  some  frontier  or  sparsely 
settled  rural  districts  where  extra-legal  govern- 
ment does  not  exist,  judges  are  in  a  degree 
really  elected  by  the  people.  It  may  be  that 
in  such  communities  the  electorate  does  actually 
225 


Unpopular  Government  in  the  United  States 

pick  out  that  one  among  the  lawyers  whom  it 
wishes  to  act  as  judge. 

There  may  be  other  communities  which  are 
well  satisfied  with  the  results  obtained  by 
special  judicial  elections  at  which  the  candidates 
are  nominated  by  petition  only  and  where  the 
ballot  is  in  form  non-partisan.  An  analysis  of 
conditions  in  such  communities  will  usually 
show  that  extra-legal  government  by  politocrats 
is  very  weak  or  non-existent,  and  that  the 
power  of  selecting  and  retiring  judges  really 
resides  in  the  lawyers,  subject  only  to  the 
approval  of  the  electorate. 

In  a  metropolitan  district,  however,  where 
there  is  a  large  population  and  a  governmental 
plan  which  reduces  the  most  intelligent  in- 
habitant to  an  extreme  degree  of  pohtical 
ignorance  as  a  voter,  and  the  establishment  of 
extra-legal  government  by  politocrats  is  thus 
secured  and  fostered  and  becomes  the  real 
government,  the  judges,  though  the  electorate 
regularly  votes  to  instal  them  in  office,  are  not 
in  fact  elected  at  all.     They  are  appointed. 

The  appointing  power  is  lodged  with  the  poUto- 
226 


Selecting  arid  Retiring  Judges 


crats  of  the  extra-legal  government.  These 
men  appomt  the  nominees.  They  do  it  openly 
and  with  a  certain  degree  of  responsibihty  under 
the  convention  system.  They  do  it  less  openly 
and  with  less  responsibility  when  primaries  are 
held. 

If  you  wish  to  test  the  soundness  of  these 
conclusions  inquire  your  way  to  a  judgeship  in 
such  a  district  or  Usten  to  the  experiences  of 
the  men  who  have  found  their  way  to  a  judge- 
ship or  have  tried  to  obtain  the  ofSce  and 
failed.  In  almost  every  case  the  story  is  one 
of  preliminary  service  to  the  organization,  rec- 
ognition by  the  local  organization  chief,  and 
through  him  recognition  and  appointment  of  a 
nomination  by  the  governing  board  of  the  party 
organization.  Those  who  do  not  go  by  this 
road  do  not  get  in.  The  voter  only  selects 
which  of  two  or  three  appointing  powers  he 
prefers.  Whichever  way  he  votes  he  merely 
approves  an  appointment  by  politocrats. 

The  judges  in  a  metropolitan  district  where 

the  extra-legal  government  rules  and  where 

elections  for  judges  are  held  are  not  subject 
227 


Unpopular  Government  in  the  United  States 

to  a  recall  merely.  They  are  subject  to  a  pro- 
gressive series  of  recalls.  They  are  subject  to 
recall  by  the  pohtocrats  who  sit  upon  the 
governing  board  of  the  party  organization. 
These  may  refuse  a  nomination  at  the  time 
of  an  election.  If  the  judge  secures  the  nomi- 
nation he  may  be  recalled  by  a  wing  of  the 
organization  knifing  him  at  the  polls.  He  may 
be,  and  frequently  is,  recalled  by  reason  of  an 
upheaval  upon  national  issues.  In  the  case  so 
rare  that  it  is  difficult  for  one  with  a  consider- 
able experience  at  the  bar  in  a  city  like  Chicago 
to  remember  it,  a  judge  is  actually  recalled 
because  of  popular  dissatisfaction  with  him. 
If  there  now  be  added  the  recaU  by  popular 
vote  at  any  time  during  the  judge's  term,  we 
shall  have  presented  the  pohtocrats  with  a 
continuous  hold  upon  the  judge.  Their  power 
may  at  any  time  be  used  to  initiate  recall  pro- 
ceedings against  him,  and  the  individual  with- 
out any  real  popular  following  will  have  but 
little  chance  against  the  tremendous  power  of 
a  successful  pohtical  organization.    The  recall 

of  a  judge  by  popular  vote  at  any  time  will 
228 


Selecting  and  Retiring  Judges 


give  a  like  opportunity  to  a  particular  faction 
of  the  political  organization  to  attack  a  judge 
it  does  not  want.  Such  a  recall  will  likewise 
give  to  a  party  which  has  a  chance  of  sweeping 
all  before  it  in  a  national  election  an  oppor- 
tunity to  initiate  a  recall  of  some  at  least  of 
the  judges  of  the  opposite  political  party. 
Of  course,  the  recall  election  will  also  give  the 
electorate  at  large  an  opportunity  to  retire  a 
judge  at  once  in  the  rare  case  where  there  is  a 
real  popular  uprising  against  him.  It  does  not 
take  any  great  degree  of  inteUigence  to  estimate 
whether  such  a  recall  by  popular  vote  will  be 
of  greater  advantage  to  the  extra-legal  govern- 
ment by  politocrats  or  to  the  electorate  at 
large. 

The  plain  truth  is  that  in  a  metropolitan 
district  the  selection  of  judges  by  some  sort  of 
appointing  power  cannot  by  any  possibihty  be 
avoided.  The  position  of  a  single  judge  out 
of  as  many  as  thirty  and  upward  in  a  district 
containing  an  electorate  of  a  hundred  thousand 
and  over  is  too  hidden  and  obscure  to  enable 

any  man  who  is  willing  to  occupy  the  place  to 
229 


Unpopular  Government  in  the  United  States 

secure  a  popular  following.  The  man  who  has 
a  real  hold  upon  a  majority  of  so  numerous  an 
electorate  will  inevitably  be  led  to  a  candidacy 
for  governor  of  the  state  or  senator  of  the 
United  States,  if  not  indeed  for  president  of 
the  United  States.  Another  obstacle  to  the 
actual  choice  of  judges  by  so  numerous  an 
electorate  is  that  the  determination  of  those 
fit  to  hold  judicial  office  is  unusually  difficult. 
It  would  be  a  problem  for  a  single  individual 
who  had  an  extensive  personal  knowledge  of 
the  candidates  and  had  observed  them  closely 
for  a  considerable  period  in  the  practice  of  their 
profession.  For  all  but  the  most  exceptional 
judge  in  a  metropohtan  district  the  power 
which  places  him  in  office  and  retires  him  from 
office  will  be  an  appointing  power,  although 
there  be  in  force  the  so-called  popular  election 
of  judges.  So  long  as  extra-legal  government 
by  politocrats  is  the  real  government,  that 
appointing  power  will  be  lodged  in  the  polito- 
crats who  wield  the  power  of  that  government. 
There  are  many  who  sincerely  believe  that 

the  ideal  functioning  of   the  electorate  in  a 
230 


Selecting  and  Retiring  Judges 


metropolitan  district  where  the  extra-legal 
government  is  strong,  may  be  restored  if  judges 
are  elected  only  at  special  elections  where  a 
judicial  ballot  is  used  which  omits  all  designa- 
tion of  parties  and  upon  which  the  names  of 
candidates  are  placed  by  petition  only  and  the 
name  of  each  candidate  is  rotated  upon  the 
ballot  so  that  it  will  appear  an  equal  number 
of  times  in  every  position.  The  object  of  such 
legislation  is  to  restore  a  choice  by  the  electo- 
rate by  depriving  the  extra-legal  government 
of  its  predominant  influence  in  judicial  elec- 
tions. The  means  adopted  to  deprive  the 
extra-legal  government  of  its  influence  is  to 
take  from  it  the  use  of  the  party  circle  and  the 
party  column.  It  may  safely  be  predicted  of 
such  legislation  that  it  will  not  cause  judges 
to  be  the  actual  choice  of  the  electorate,  nor 
will  it  eliminate  the  influence  of  the  politocrats 
in  judicial  elections. 

The  supposition  is  that  if  the  influence  of 
the  politocrats  can  be  eliminated  the  electo- 
rate will  necessarily  make  a  real  choice.    But 

the  electorate  does  not  fail  to  choose  simply 
231 


Unpopular  Government  in  the  United  States 

because  the  politocrat  has  taken  that  choice 
from  it.  On  the  contrary,  the  pohtocrat  rules 
because  the  electorate  regularly  goes  to  the 
polls  too  ignorant  poHtically  to  make  a  choice 
of  judges.  That  ignorance  is  due  to  the  fact 
that  the  office  of  judge  is  inconspicuous  and 
the  determination  of  who  are  quahfied  for  the 
office  is  unusually  difficult,  even  when  an 
expert  in  possession  of  all  the  facts  makes  the 
choice.  The  proposed  method  of  election  does 
not  in  the  least  promise  to  eliminate  the  funda- 
mental difficulty  of  the  poUtical  ignorance  of 
the  electorate.  If,  therefore,  it  succeeded  in 
eliminating  the  influence  of  the  extra-legal 
government  the  question  would  still  remain: 
Who  would  select  and  retire  the  judges? 
There  is  no  reason  to  beheve  that  the  electorate 
would  make  any  real  choice.  Electors  would 
be  just  as  pohtically  ignorant  as  they  were 
before.  They  would  be  just  as  httle  fitted  for 
making  a  choice  as  they  were  before.  The 
elimination  of  extra-legal  govermnent  does  not 
give  to  the  electorate  at  large  the  knowledge 
required  to  vote  intelligently.  Who,  then,  will 
232 


Selecting  and  Retiring  Judges 


select  and  retire  the  judges  ?  The  newspapers 
might  have  a  larger  influence,  but  they  would 
probably  be  very  far  from  exercising  a  control- 
Hng  influence  or  uniting  in  such  a  way  as  to 
advise  and  direct  the  majority  of  the  voters 
out  of  an  electorate  of  several  hundred  thousand 
how  to  vote  for  a  large  number  of  judges. 
Special  cliques  would  each  be  too  small  to 
control  a  choice  and  combinations  would  be 
too  difficult  to  make.  The  basis  of  choice 
would,  therefore,  be  utterly  chaotic.  There 
could  be  neither  responsibility  nor  intelligence 
in  the  selection  of  judges.  The  results  reached 
would  depend  upon  chance  or  upon  irrespon- 
sible and  temporary  combinations.  With  every 
lawyer  allowed  to  put  up  his  name  by  petition 
and  chance  largely  governing  the  result,  the 
prospect  is  hardly  encouraging. 

There  is  no  reason  to  believe,  however,  that 
any  such  disorganized  method  of  choice  would 
be  tolerated.  The  most  potent  single  power  in 
elections  would  end  it.  That  power  would  be 
the  extra-legal  government.  Its  organization 
would  be  put  to  greater  trouble  in  advising 
233 


Unpopular  Government  in  the  United  States 

and  directing  the  politically  ignorant  how  to 
vote,  because  it  would  have  been  deprived 
of  the  party  circle  and  party  column.  But 
the  advice  and  direction  could  and  would  be 
given  and  followed.  Each  competitor  for  the 
power  of  the  successful  extra-legal  government 
would  have  its  slate  of  candidates.  Each  would 
prepare  separate  printed  lists  of  its  slate  to  be 
distributed  at  the  polls  and  the  voter  would  for 
the  most  part,  as  now,  take  the  hst  of  that 
organization  he  was  loyal  to  or  feared  the  most, 
and  vote  the  names  upon  it  no  matter  where 
they  appeared  upon  the  ballot.  Thus  the  ap- 
pointment and  retirement  of  judges  by  the 
extra-legal  government  would,  after  perhaps  a 
period  of  chaos  and  readjustment,  again  appear. 
Perhaps  it  would  be  even  stronger  as  a  result 
of  reaction  and  deliverance  from  the  chaotic 
conditions  which  it  reheved. 

It  is  impossible  to  escape  the  conclusion  that 
in  a  metropolitan  district  with  one  hundred 
thousand  voters  and  upward,  the  selection  of 
judges  by  the  electorate  is  practically  impos- 
sible. It  is  equally  certain  that  the  judges  in 
234 


Selecting  mid  Retiring  Judges 


such  a  community  must  be  selected  by  some 
appointing  power.  The  real  and  only  ques- 
tion is:  What  is  the  best  method  of  appoint- 
ment? 

No  method  could  be  worse  than  that  which 
we  now  employ.  Appointment  by  the  poHto- 
crats  of  the  extra-legal  government  is  so  ob- 
scure, especially  when  effected  by  primaries, 
that  they  are  under  no  responsibility  whatever 
in  naming  judges  and  they  have  Httle  interest 
in  the  due  administration  of  justice.  In- 
deed, the  situation  is  worse  than  that,  for 
they  may  have  positive  reasons  for  wishing  a 
type  of  man  from  whom  they  may  expect 
certain  courses  of  action  which  wiU  actually 
be  inimical  to  the  efficient  administration  of 
justice,  particularly  in  criminal  causes;  or  they 
may  be  interested  in  fiUing  judicial  offices  with 
those  who  have  done  more  in  the  way  of  faith- 
ful service  to  the  organization  than  in  the  way 
of  practice  in  the  courts. 

From  time  to  time,  therefore,  suggestions 
have  come  from  members  of  the  bar  of  ways 
and  means  for  reducing  the  influence  of  the 

235 


Unpopular  Government  in  the  United  States 

appointing  power  of  the  politocrats.  It  has 
been  suggested  that  the  bar  association  should 
be  given  power  to  place  upon  the  official  ballot 
a  bar-association  ticket  upon  which  might 
appear  candidates  who  had  been  nominated 
by  any  of  the  other  political  parties.  This 
would  give  the  candidates  approved  by  the 
bar  association  and  also  by  any  other  political 
party  considerable  advantage  over  those  ap- 
pearing in  only  one  party  column.  To  that 
extent  it  would  throw  a  greater  influence  into 
the  hands  of  the  lawyers.  The  question, 
however,  has  arisen  whether  this  would  result 
in  a  greater  power  in  an  unbiased  bar  associ- 
ation to  select  good  judges,  or  in  the  lining- 
up  of  lawyers  in  groups  which  were  controlled 
by  the  leaders  of  the  poHtocrats.  The  effort  is 
frequently  made  to  provide  that  all  judges  shaU 
be  elected  at  a  special  judicial  election.  This 
course  may  prevent  the  recall  of  judges  because 
of  an  upheaval  on  national  issues.  It  does  not, 
however,  interfere  with  the  appointment  of  a 
nomination  by  the  politocrats  in  the  first  in- 
stance.    Even  when  the  nominations  are  all 

236 


Selecting  and  Retiring  Judges 


by  petition  and  the  party  circle  eliminated  and 
the  names  of  candidates  rotated  upon  the 
ballot,  resort  must  still  be  had  to  the  extra- 
legal government  to  escape  absolute  chaos  and 
selection  by  mere  chance. 

Nothing  of  great  value  can  be  accomphshed 
until  it  is  recognized  that  the  judges  in  a 
metropohtan  district  are  certain  to  be  appointed 
and  that  the  only  proper  appointing  power  is 
one  which  is  conspicuous,  legal,  subject  directly 
to  the  electorate,  and  interested  in  and  respon- 
sible for  the  due  administration  of  justice. 

This  principle  may  be  worked  out  in  a  variety 
of  ways. 

When  the  state  executive  as  now  constituted 
is  given  power  to  appoint  directly,  or  to  appoint 
indirectly  by  designating  the  nominees  to  be 
voted  upon,  the  principle  is  worked  out  in  one 
way.  There  are,  no  doubt,  serious  objections 
to  both  methods  of  executive  appointment. 
The  governor  of  the  state  is,  of  course,  in  the 
midst  of  poHtics.  He  is  also  in  the  midst  of  a 
legislative  program,  and  the  temptation  is  very 
strong  to  trade  judicial  places  for  the  progress 
237 


Unpopular  Government  in  the  United  States 

of  administration  measures  in  the  legislature. 
Then  the  governor  is  not  particularly  respon- 
sible for  the  administration  of  justice,  that 
being  a  matter  for  the  judicial  department 
rather  than  the  executive.  But  this  much 
can  be  afi&rmed,  that  any  mode  of  appoint- 
ment by  the  governor,  since  it  is  conspicuous 
and  legal,  and  since  the  governor  is  directly 
subject  to  the  electorate,  carries  with  it  a 
measure  of  responsibihty  which  is  not  found 
where  the  appointment  is  secret  and  by  the 
politocrats  of  the  extra-legal  government.  Ap- 
pointment by  the  governor  is  better  than  the 
present  misnamed  plan  of  popular  election. 

It  might  be  suggested  that  the  power  of 
appointment  could  be  lodged  in  the  highest 
appellate  tribunal  of  the  state,  the  members 
of  which  had  terms  of  considerable  length,  but 
were  subject  to  election.  This  again  is,  no 
doubt,  open  to  objections.  But  again,  it  could 
not  possibly  be  a  worse  method  than  the  one 
now  employed.  Judges  of  such  courts  are  more 
easily  than  governors  made  responsible  for  the 

due  administration  of  justice.  They  would  have 
238 


Selecting  and  Retiring  Judges 


stronger  motives  than  the  governor  for  appoint- 
ing men  who  could  best  carry  on  the  adminis- 
tration of  justice.  No  body  of  men  in  the  state 
has  a  better  opportunity  for  determining  the 
character  and  abiUty  of  lawyers,  since  they 
examine  the  work  of  lawyers  continually  with 
most  minute  care. 

It  has  been  suggested  that  vacancies  in  the 
judiciary  should  be  filled  by  the  appointment 
of  the  chief  justice  of  the  metropoHtan  district. 
He  in  turn  should  be  chosen  by  the  electorate 
of  the  district  at  fairly  frequent  intervals — 
viz.,  every  four  or  six  years — and  in  him 
should  be  vested  large  powers  to  oversee  and 
direct  the  mode  of  organizing  and  handhng 
the  business  of  the  court.' 

I  The  following  extract  from  the  letter  of  Mr.  Charles  H.  Harts- 
home,  of  Jersey  City,  N.J.,  to  the  author  dated  November  4, 
191 2,  explains  the  plan  of  administering  the  chancery  jurisdiction 
in  New  Jersey:  "The  constitution  of  New  Jersey  provides  that 
'The  Court  of  Chancery  shall  consist  of  a  Chancellor.'  The 
Chancellor  is  appointed  by  the  Governor  with  the  approval  of  the 
Senate,  for  a  term  of  seven  years.  He  is  usually  reappointed, 
though  it  is  an  open  question  whether  this  office  is  an  exception 
to  the  custom  that  judicial  officers  of  the  superior  courts  shall  be 
reappointed,  regardless  of  their  poUtical  affiUations,  so  long  as 
they  are  capable  of  giving  efficient  service.  That  custom  has 
resulted  in  our  havdng  upon  the  Bench  of  the  higher  courts,  judges 

239 


Unpopular  Government  in  the  United  States 

The,  objection  which  will  at  once  be  raised 
to  this  is  that  it  presents  an  opportunity  for  the 
poUtocrats  to  obtain  vast  power  by  securing 
control  of  the  chief  justice.  It  is  not  difficult 
to  demonstrate  that  the  lodging  of  the  appoint- 
ing power  in  the  hands  of  a  responsible  and 
conspicuous  chief  justice  controlled  by  the 
politocrats  would  be  much  less  inimical  to  the 
administration  of  justice  than  the  appointment 
of  judges  in  secret  and  without  responsibility 
by  the  poHtocrats  directly.  The  chief  justice 
would,  of  course,  only  fill  vacancies  occurring 
during  his  short  term.  The  guaranty  to  the 
pubHc  that  such  vacancies  would  be  filled  with 

who  have  served  for  very  long  periods — twenty-five  years  and 
upwards. 

"A  number  of  years  ago,  the  work  of  the  Court  of  Chancery 
having  become  too  great  for  one  judge  to  dispose  of,  a  statute 
authorized  the  appointment  by  the  Chancellor  alone  (without 
confirmation  by  any  other  authority)  of  a  Vice-Chancellor,  as 
assistant.  By  further  statutes,  the  number  of  these  was  increased 
to  seven.  The  Court  now  consists  of  a  Chancellor  and  seven  Vice- 
Chancellors,  who  sit  separately  in  different  parts  of  the  State. 
The  Vice-Chancellors  are  appointed  for  seven-year  terms.  That 
Bench  is  generally  regarded  as  the  strongest  in  the  State  and  has 
given  entire  satisfaction  to  the  Bar  and  to  the  pubUc. 

"The  Vice-Chancellors  hear  interlocutory  motions  in  nearly 
all  cases  under  a  standing  rule  of  the  Court,  but  they  conduct  trials 
and  final  hearings  only  upon  an  order  of  reference  from  the 

240 


Selecting  and  Retiring  Judges 


fairly  efficient  men  lies  in  the  fact  that  enormous 
responsibility  for  the  due  administration  of 
justice  is  focused  upon  a  single  man.  Every 
complaint  of  inefficiency  and  impropriety  comes 
home  to  him.  Such  a  man  cannot  carry  on 
the  work  of  the  court  without  the  most  efficient 
judges  that  he  can  possibly  secure.  This  leads 
necessarily  to  procuring  as  judges  members  of 
the  bar  who  have,  in  a  successful  practice  in 
the  courts,  had  a  proper  service  test.  Assum- 
ing that  such  a  chief  justice  were  the  recog- 
nized deputy  of  the  pohtocrats  he  would  be 
driven  by  the  necessities  of  the  case,  by  the 
conspicuousness  of  his  position,  and  the  force 

Chancellor.  After  trial  they  write  the  opinion  of  the  Court, 
which  is  usually  reported,  and  advise  the  decree,  which  is  then 
signed  by  the  Chancellor.  No  appeal  lies  from  their  decree  to  the 
Chancellor,  but  all  such  decrees  may  be  appealed  directly  to  the 
Court  of  Errors  and  Appeals. 

"Theoretically,  the  Vice-Chan cellors  are  merely  referees  who 
report  and  advise  the  Chancellor,  the  decree  being  made  by  him 
upon  their  report.  In  actual  practice  however,  they  are  members 
of  the  Court  of  Chancery,  in  fact  (but  not  in  form)  making  the 
final  decree  of  that  Court. 

"The  system  has  worked  very  satisfactorily  in  respect  to  the 
character  and  attainments  of  the  members  of  that  Bench,  but  the 
work  of  the  Court  in  populous  cities  is  a  good  deal  in  arrear. 
This  is  due  to  the  volume  of  business  having  outgrown  the  nima- 
ber  of  Vice-Chancellors." 

241 


Unpopular  Government  in  the  United  States 

of  public  opinion,  to  do  his  utmost  to  persuade 
the  poHtocrats  to  permit  him  to  appoint  efficient 
men.  That  would  produce  an  appointing  power 
far  better  than  the  secret  and  utterly  irrespon- 
sible method  of  direct  appointment  by  the 
poHtocrats  which  now  exists.  A  much  more 
desirable  result  than  this,  however,  is  to  be 
expected.  Such  a  chief  justice  would  be  so 
important  and  conspicuous  an  officer  and  his 
power  so  great,  that  in  his  nomination  and 
election  the  desires  of  the  electorate  as  a  whole 
would  have  to  be  much  more  fully  considered 
than  is  the  case  where  the  poHtocrats  appoint 
to  a  nomination  and  seek  the  election  of  an 
obscure  member  of  a  bench  composed  of  thirty 
members  and  upward. 

AU  fear  of  the  chief  justice  having  too  much 
power  and  falHng  too  much  under  the  influence 
of  the  poHtocrats  and  extra-legal  government 
may  be  dissipated  by  making  adequate  pro- 
vision for  his  retirement.  The  chief  justice 
would,  of  course,  be  subject  to  impeachment. 
He  might  also  be  retired  by  a  legislative  recaU 

by  a  vote  of  three-fourths  of  the  members  of 
242  . 


Selecting  and  Retiring  Judges 


the  legislature  after  an  opportunity  for  defense 
and  for  cause  entered  upon  the  journals,^  or  by 
the  governor  upon  an  address  of  both  houses 
of  the  legislature.^  The  fact  that  the  chief 
justice  held  office  only  for  a  short  term  would 
in  fact  subject  him  to  a  recall  by  popular  vote 
at  the  end  of  each  period.  To  this  might,  with 
perfect  propriety,  be  added  the  recall  of  the 
chief  justice  and  election  of  his  successor  by 
popular  vote  during  the  regular  term.  Surely 
such  safeguards  are  ample  to  protect  the 
electorate  from  any  abuse  of  the  appointing 
power  conferred  upon  the  chief  justice. 

A  chief  justice  who  is  retired  at  the  end  of 
his  term  by  failure  to  be  re-elected  should, 
however,  have  the  right,  if  he  so  chooses,  to 
remain  one  of  the  judges  of  the  court  upon  the 
same  footing  as  an  appointed  judge  and  sub- 
ject to  assignment  to  duty  by  his  successor. 
This  is  proper  because  the  election  goes  only 
to  the  matter  of  his  pohtical  position  as  the 
chief  justice  exercising  an  appointing  power 

'  Illinois  Constitution  1870,  Art.  VI,  sec.  30. 
'  Massachusetts  Constitution,  chap,  iii,  Art.  I;  38  and  39  Vict., 
Ch.  77  (Jud.  Act  1875),  sec.  5. 

243 


Unpopular  Government  in  the  United  States 

and  administrative  powers  with  respect  to  the 
organization  of  the  court  and  the  way  its 
business  is  handled.  The  electorate  has  nothing 
to  do  with  his  fitness  to  decide  litigated  causes. 
Furthermore,  the  fact  that  a  failure  to  be  re- 
elected will  not  send  the  chief  justice  back  to 
the  practice  of  the  law,  which  he  has  given  up, 
will  insure  greater  independence  on  his  part 
while  holding  office  as  chief  justice.  It  will 
also  be  an  act  of  fairness  to  him,  since  a  pro- 
fession once  given  up  during  six  or  eight  years 
for  a  place  upon  the  bench  is  difficult  and  fre- 
quently impossible  to  recover.  In  addition  to 
this  it  is  best  for  the  administration  of  justice 
itseK  that  ex-chief  justices  who  cannot  regain 
their  position  in  practice  and  are  pitiful  re- 
minders of  former  greatness  should  not  be 
left  derehcts  at  the  bar.  But  if  a  chief  justice 
upon  failure  to  be  re-elected  chooses  to  take 
his  place  as  a  judge  in  the  court,  he  should  not 
be  permitted  again  to  be  a  candidate  for  chief 
justice.  It  wiU  not  do  to  have  in  the  court  the 
rival  of  the  sitting  chief  justice  with  a  motive 

for  making  trouble. 

244 


Selecting  and  Retiring  Judges 


The  principal  objections  to  the  appointment 
of  judges  have  been  that  they  necessarily  hold 
for  life  and  become  arbitrary  and  exercise 
judicial  power  in  a  manner  distasteful  to  the 
lawyers,  their  cUents,  and  a  majority  of  the 
electorate.  It  will  usually  be  found  on  analysis 
that  the  objectionable  exercise  of  judicial  power 
by  an  appointed  judge  is  due  to  the  fact  that 
appointment  means  a  life  tenure.  Hence  the 
real  objection  to  the  appointment  of  judges 
as  such  is  that  when  appointed  they  have  held 
office  for  life.  The  entire  objection,  therefore, 
to  appointment  may  be  met  by  Hmiting  the 
tenure  of  the  appointed  judge  and  by  a  variety 
of  provisions  for  his  retirement.  He  would,  of 
course,  be  subject  to  impeachment.  He  might 
very  well  in  addition  be  subject  to  some  mode 
of  legislative  recall  such  as  was  proposed  for 
the  chief  justice.  His  term  may  be  limited 
to  five  years  or  seven  years,  thus  requiring  a 
retirement  at  the  end  of  each  period  unless  a 
reappointment  is  made.  The  judge  appointed 
by  the  chief  justice  may  even  be  subject  to 
recall  by  popular  vote  according  to  one  or  the 

245 


Unpopular  Government  in  the  United  States 

other,  or  both,  of  two  plans.  The  appomt- 
ment  might  be  for  a  probationary  period — say 
three  years — at  the  end  of  which  time  the  judge 
must  submit  at  a  popular  election  to  a  vote  on 
the  question  as  to  whether  the  place  which  he 
holds  shall  be  declared  vacant.  This  is  not  a 
vote  which  puts  anyone  else  in  the  judge's 
place,  but  a  vote  which  can  at  most  only  leave 
the  place  to  be  filled  by  the  appointing  power. 
Such  a  plan  must  necessarily  promote  the 
security  of  the  judge's  tenure  if  at  the  popu- 
lar election  his  office  be  not  declared  vacant. 
After  surviving  such  a  probationary  period  his 
appointment  should  continue  for — ^let  us  say — 
six  or  nine  years.  At  the  end  of  that  time 
the  question  might  again  be  submitted  as  to 
whether  his  place  should  be  declared  vacant. 
If  thought  necessary  further  to  protect  the 
electorate  from  the  bogey  of  an  appointed 
judge,  he  might  be  subject  to  recall  at  any  time 
upon  the  petition  of  a  percentage  of  the  elec- 
torate. But  this  recall,  like  the  other,  should 
present    only    the    question    of   whether   the 

judge's  place  should  be  declared  vacant,  leav- 
246 


Selecting  and  Retiring  Judges 


ing  the  vacancy,  if  created,  to  be  filled  by  the 
appointing  power.  The  danger  in  the  existence 
of  both  these  plans  of  popular  recall  is  that 
they  may  be  used  with  more  effect  by  any 
extra-legal  government  of  politocrats  than  by 
the  electorate  at  large.  It  is  highly  improbable 
that  the  electorate  would  find  it  necessary  or 
advisable  to  use  either  mode  of  recall.  The 
presence  of  either  mode  would,  therefore, 
furnish  a  means  whereby  an  influence  of  the 
politocrats  upon  the  judiciary  could  be  con- 
tinuously maintained. 

It  is,  however,  a  grave  mistake  to  suppose 
that  judges  exercise  their  judicial  power  in  a 
distasteful  and  arbitrary  manner  merely  be- 
cause they  hold  for  Hfe  or  during  good  behavior. 
An  arbitrary  or  disagreeable  course  of  action 
by  a  judge  arises  principally  from  the  fact  that 
he  is  subject  to  no  authority  which  can  receive 
complaints  against  him  and  act  upon  those 
complaints  by  way  of  private  or  public  criticism 
and  correction  of  the  judge.  The  best  pro- 
tection against  arbitrary  and  disagreeable  ac- 
tions by  judges  is  a  duly  constituted  body  of 
247 


Unpopular  Government  in  the  United  States 

fellow  judges  who  hold  a  position  of  superior 
power  and  authority  and  to  whom  complaints 
as  to  the  conduct  of  judges  may  be  brought 
and  who  may  investigate  those  complaints  and 
exercise  a  corrective  influence.  When  a  con- 
siderable number  of  judges  in  a  metropolitan 
district  are  provided  with  a  chief  justice  and 
organized  for  the  efficient  handling  of  a  great 
volume  of  business,  the  means  of  securing  the 
exercise  of  a  corrective  influence  over  their 
conduct  at  once  appears.  Such  a  court  must 
be  organized  into  divisions  for  the  purpose  of 
handling  specialized  classes  of  litigation.  In  a 
metropolitan  district  like  Chicago  there  should 
be  an  appeUate  division  with  from  six  to  nine 
judges  sitting  in  groups  of  three,  a  chancery 
division  of  six  judges  with  a  corps  of  masters, 
a  probate  and  family  relations  division  with  at 
least  four  judges  and  a  corps  of  masters  and 
assistants,  a  common-law  division  with  fifteen 
to  eighteen  judges  and  a  corps  of  masters,  and 
a  municipal  court  division  with  thirty-three 
judges.  The  chief  justice  should  be  the  pre- 
siding justice  of  the  appeUate  division  and  each 
248 


Selecting  and  Retiring  Judges 


of  the  other  divisions  should  have  a  presiding 
justice  with  large  powers  over  the  way  in  which 
the  work  of  each  division  is  handled.  The 
chief  justice  and  the  presiding  justices  of 
divisions  should  form  a  judicial  council  or 
executive  committee,  with  considerable  powers 
over  the  way  the  court  as  a  whole  is  run. 
To  such  a  judicial  council  there  should  be 
committed  the  power  to  remove  from  office 
any  judge,  other  than  the  chief  justice,  and  to 
reprove,  either  privately  or  publicly,  or  transfer 
any  such  judge  to  some  other  division  of  the 
court  for  inefficiency,  incompetency,  neglect  of 
duty,  lack  of  judicial  temperament,  or  con- 
duct unbecoming  a  gentleman  and  a  judge,  for 
the  good  of  the  service,  or  to  promote  its  effi- 
ciency. The  power  of  removal  by  the  council 
should  be  exercised  only  where  written  charges 
have  been  filed  and  after  an  opportunity  has 
been  given  to  the  judge  to  be  heard  in  his  own 
defense. 

The  existence  of  a  judicial  council  composed 
of  the  chief  justice  and  the  presiding  justices 
of  the  different  divisions  of  the  court,  each  one 
249 


Unpopular  Government  in  the  United  States 

responsible  for  the  way  in  which  the  work  of 
his  division  is  handled,  suggests  also  a  prac- 
ticable way  in  which  to  stimulate  efficiency  at 
the  bar,  provide  a  service  test  for  candidates 
for  places  on  the  bench,  and  subject  the  appoint- 
ing power  of  the  chief  justice  to  a  slight  but 
reasonable  control.  The  judicial  council  should 
be  given  power  to  appoint  upon  an  ehgible  Ust 
for  each  division  of  the  court  twice  as  many 
members  of  the  bar  as  there  are  judges  in  the 
division.  The  chief  justice,  in  appointing  judges 
to  a  place  in  any  division  of  the  court,  should 
be  required  to  select  from  this  ehgible  list  on  the 
occasion  of  every  other  appointment  at  least. 
The  operation  of  such  a  plan  would  be  to  place 
in  the  hands  of  the  presiding  judges  of  divisions 
an  express  authority  to  suggest  what  members 
of  the  bar  practicing  before  their  divisions  re- 
spectively would  make  satisfactory  judges  for 
each  division.  It  would  also  operate  to  stim- 
ulate the  efforts  of  lawyers  and  promote  com- 
petition to  secure  places  upon  such  ehgible  Hsts 
by  specialization  in  practice  before  particular 

divisions.     This  would  develop  an  expertness 
250 


Selecting  and  Retiring  Judges 


in  the  handling  of  litigation  which  does  not 
now  exist  on  the  part  of  any  considerable 
number  of  the  bar. 

We  may  then  conclude  that  in  a  metropoHtan 
district  with  a  hundred  thousand  electors  and 
upward  judges  cannot  be  elected.  They  must 
be  appointed.  If  an  election  is  attempted  it  is 
a  failure  and  appointment  results.  The  worst 
method  of  appointment  is  the  secret  and  ir- 
responsible appointment  by  politocrats.  The 
most  promising  is  the  conspicuous  and  legal 
appointment  by  a  chief  justice  elected  at  large 
in  the  district  at  frequent  intervals.  Every 
objection  to  such  a  plan  and  every  prejudice 
against  it  may  be  met  by  provisions  for  the  re- 
tirement of  the  chief  justice  and  his  appointees 
by  impeachment,  by  legislative  and  popular 
recalls,  and  by  the  power  of  the  judicial  council 
to  discipline  and  remove  any  judge  other  than 
the  chief  justice.  It  is  even  possible  under 
such  a  plan  to  promote  efficiency  by  securing 
an  eligible  Ust  of  men  whose  experience  in 
practice  under  the  eyes  of  the  judges  insures 
excellence  in  appointment. 
251 


CHAPTER  XVIII 

CHANGES  IN  THE  PLAN  OF  THE  FEDERAL 
GOVERNMENT 

The  federal  government  is  already  organized 
upon  a  plan  of  centralized  power.  The  ballot 
which  it  presents  to  the  voter  is  always  short. 
The  voter  casts  his  ballot  for  a  president  and 
vice-president  every  four  years  and  for  one 
congressman  from  his  district  (and  perhaps 
one  or  two  from  the  state  at  large)  every  two 
years.  United  States  Senators  hold  office  for 
six  years.  Until  the  adoption  of  the  recent 
17  th  Amendment  two  were  elected  by  each 
state  legislature.  Now  two  are  elected  at 
large  in  each  state.  The  judges  are  appointed 
by  the  president  with  the  approval  of  the 
Senate.  The  Senate  has  a  general  veto  power 
on  Executive  appointments.  Such  in  form  at 
least  is  the  organization  of  the  national  govern- 
ment. 

Today,  however,  extra-legal  government  has 

laid  its  hand  to  some  extent  at  least  upon  the 

252 


Changes  in  Plan  of  Federal  Government 

government  at  Washington.  In  congressional 
districts  where  extra-legal  government  flour- 
ishes, it  has  become  the  strongest  and  most 
persistent  single  force  in  the  election  of  con- 
gressmen. Naturally  it  has  its  loyal  supporters 
in  the  House  of  Representatives  of  Congress. 
As  the  power  of  extra-legal  government  grows 
and  becomes  more  widespread  its  influence  in 
that  house  mil  grow.  It  is,  of  course,  entirely 
immaterial  whether  a  supporter  of  the  extra- 
legal government  is  labeled  Democrat  or  Re- 
pubHcan.  He  is  a  Democrat  when  he  comes 
from  a  district  where  the  vote-directing  machine 
operates  successfully  under  that  name.  He  is 
a  Republican  when  the  vote-directing  machine 
operates  successfully  under  that  name.  The 
power  of  extra-legal  government  which  has 
appeared  in  the  Senate  of  the  United  States  is 
the  direct  consequence  of  the  power  of  extra- 
legal government  in  the  state  legislatures.  Of 
course,  extra-legal  government  does  not  often 
control  a  majority  of  the  members  of  both 
houses  of  a  state  legislature.  A  considerable 
minority,  however,  who  hold  together  under  a 
253 


Unpopular  Government  in  the  United  States 

strong  leadership  can  wield  a  large  influence. 
One  of  the  reasons  for  the  persistence  of  the 
fight  upon  Mr.  Lorimer  and  its  popular  support 
throughout  the  country  was  the  fact  that  his 
election  represented  to  the  popular  mind  in  a 
striking  manner  the  invasion  of  the  United 
States  Senate  by  extra-legal  government.  No 
matter  how  free  from  corruption  Mr.  Lorimer 
may  have  been,  the  power  so  openly  wielded 
by  those  allied  with  extra-legal  government  to 
place  him  in  the  United  States  Senate  pre- 
sented itself  to  the  people  of  the  country  as  a 
menace  to  the  nation.  Yet  a  similar  invasion 
has  been  going  on  steadily  in  quieter  ways. 
Every  gain  of  extra-legal  government  in  the 
control  of  state  legislatures  has  been  a  step 
farther  toward  a  predominant  influence  in  the 
United  States  Senate.  It  has  been  for  the  most 
part  through  senators  who  have  supported,  or 
at  least  felt  that  they  must  placate  the  power 
of  extra-legal  government  in  their  states,  that 
that  government  has  obtained  its  hold  upon 
the  federal  judiciary.  The  president's  appoint- 
ments   must    be    approved    by    the    Senate. 

254 


Changes  in  Plan  of  Federal  Government 

Senatorial  custom,  sometimes  called  courtesy, 
places  the  control  of  the  Senate's  approval  in 
the  hands  of  the  senators  from  the  state  for 
which  the  judicial  appointment  is  made.    The 
two   senators   from   the   state   sometimes   di- 
vide the  federal  judicial  districts  in  the  state 
between  them.    Thus  has  the  president's  ap- 
pointment  to   the  lower  federal  bench  been 
placed  at  the  mercy  of  two,  or  perhaps  a  single 
senator.    The  president  on  his  part  may  have 
a   popular   legislative   program   which   he    is 
pledged  and  is  attempting  to  secure  action  on 
from   Congress.    The  support  of  senators  is 
necessary.     The   tendency,   therefore,   on  the 
part  of  the  president    to  allow  senators   the 
upper  hand  in  his  appointments  to  the  bench 
has  been  very  marked.     Extra-legal  govern- 
ment has  in  the  last  few  years  become  a  visible 
force  in  the  selection  of  the  president  of  the 
United  States   through  its  power  to  control 
delegates   sent   to   the   National   Convention. 
At    both    the    Democratic    and    Repubhcan 
National  Conventions  in  191 2  the  numerical 
strength  of  the  delegates  representing  extra- 
ass 


Unpopular  Government  in  the  United  States 

legal  government  in  particular  states  or  dis- 
tricts of  states  was  very  marked.  In  the  Re- 
publican Convention  these  delegates  and  their 
aUies  not  only  controlled  the  situation,  but 
actually  took  issue  with  the  delegates  who 
represented  the  electorate  and  beat  them. 
This  was  not  a  matter  which  could  end  when 
one  faction  cast  more  legal  votes  at  the  con- 
vention than  the  other.  The  contest  was  one 
between  the  forces  of  extra-legal  government 
and  delegates  for  the  moment  actually  repre- 
senting the  popular  choice.  The  contest  be- 
tween two  such  forces  can  be  settled  only 
when  one  or  the  other  has  been  swept  from 
the  field.  The  triumph  legally  of  the  forces 
of  extra-legal  government  in  the  Repubhcan 
Convention  could  have  no  other  logical  out- 
come than  the  formation  of  a  new  party. 

The  recent  change  effected  by  the  seventeenth 
amendment  providing  for  the  popular  election 
of  senators  was  made  avowedly  for  the  purpose 
of  ousting  the  control  of  extra-legal  government 
in  the  Senate.     We  may  be  sure,  however,  that 

the  change  will  not  in  the  least  tend  to  drive 

256 


Changes  in  Plan  of  Federal  Government 

extra-legal  government  from  the  field  at  large. 
It  follows,  therefore,  that  the  politocrats  will 
use  all  their  power  to  control  nominations  and 
elections  to  the  United  States  Senate.  The 
office  of  senator,  however,  is  conspicuous  and 
extremely  important.  This  fact  alone  will 
force  the  politocrats  to  put  forward  or  support 
candidates  of  some  independence  and  popular 
strength.  This  will  naturally  result  in  the 
United  States  Senate  becoming  far  more 
representative  of  the  electorate  than  is  the 
House.  We  may,  therefore,  expect  the  Senate 
to  become  less  conservative  than  the  House.  If 
this  continues  in  a  marked  degree,  it  means  the 
entire  decadence  of  the  House  as  a  legislative 
body.  Its  power  will  be  exercised  by  the  lead- 
ers of  the  house  majority  in  the  interests  of  a 
conservative  check  upon  the  Senate.  Whether 
this  condition  would  survive  the  eHmination  of 
extra-legal  government  in  our  local  municipal 
and  state  governments  seems  beyond  the  possi- 
bihty  of  prediction. 

Other  proposals  for  changes  in  the  plan  of 
the  federal  government  have  been  made  with 
257 


Unpopular  Government  in  the  United  States 

the  avowed  object  of  eliminating  extra-legal 
government  by  politocrats.  The  influence  of 
extra-legal  government  in  national  conventions 
is  to  be  permanently  overthrown  by  presiden- 
tial primaries.  If  any  change  were  to  be  made 
in  respect  to  the  judiciary  it  would  be  in  the 
direction  of  making  them  elective,  and  perhaps 
subject  to  the  recall.  No  doubt  nominations 
through  primary  elections  would  be  advocated 
for  all  elective  officers.  Newspapers  recently 
gave  space  to  the  demand  that  the  postmasters 
should  be  elected  by  the  voters  of  the  post- 
office  district.  Whatever  temporary  advan- 
tage over  the  extra-legal  government  there  may 
be  in  any  of  these  expedients,  they  represent 
the  application  of  the  very  principle  of  govern- 
ment which  in  the  long  run  produces,  and  must 
always  produce,  the  disease  from  which  we  are 
suffering  and  desire  to  be  cured.  This  is  our 
process  of  curing  the  ills  of  democracy  with 
more  democracy.  It  is  the  case  of  more  poi- 
son for  one  already  overcome.  Have  the  past 
thirty  years  not  yet  taught  us  that  to  increase 

the  burden  upon  the  voter  is  to  reduce  the 

258 


Changes  in  Plan  of  Federal  Government 

most  intelligent  member  of  the  electorate  to 
the  darkest  pohtical  ignorance  and  thus  to  en- 
able the  professional  adviser  and  director  to 
the  pohtically  ignorant  voter  to  cast  his  ballot 
for  him?  Every  additional  appeal  to  the 
electorate  is  a  step  toward  that  scheme  of 
government  which  is  most  favorable  to  the 
growth  and  development  of  extra-legal  govern- 
ment by  poUtocrats.  The  federal  government 
is  suffering  because  in  the  village,  the  town- 
ship, the  city,  the  county,  and  the  state,  such 
pohtical  burdens  have  been  placed  upon  the 
voter  that  he  cannot  perform  his  pohtical 
functions  intelhgently.  He  is  forced  to  dele- 
gate them  to  those  who  make  it  their  pro- 
fession to  carry  his  pohtical  burdens  for  him. 
To  them  he  turns  over  the  privilege  of  casting 
his  ballot  for  him.  It  would  be  amusing  if  it 
were  not  tragic  that  the  increase  of  the  cause 
should  be  selected  as  the  cure. 

The  elimination  of  extra-legal  government 
from  our  villages,  townships,  cities,  coun- 
ties, and  states  has  become  a  national  prob- 
lem.   The  proper  functioning  of  the  national 

259 


Unpopular  Government  in  the  United  States 

government  is  impossible  while  these  sources 
contribute  to  the  existence  of  extra-legal  govern- 
ment. The  reduction  of  governmental  agencies 
to  two — a  local  municipal  government  and  a 
state  government — the  application  of  the  prin- 
ciple of  the  commission  form  of  government  to 
both,  so  that  the  electorate  casts  its  ballot  for 
one  officer  only  in  each,  and  the  consequent 
disruption  of  extra-legal  government,  are  essen- 
tial to  the  restoration  of  the  federal  govern- 
ment to  poHtical  health.  The  plan  of  the  federal 
government  taken  by  itself  and  as  an  instru- 
ment of  government  in  its  appropriate  sphere 
is  still  admirable.  If  it  were  the  only  govern- 
mental agency  in  the  field,  extra-legal  govern- 
ment would  never  have  had  a  chance  to  achieve 
power  in  the  United  States.  If  any  improve- 
ments in  the  plan  of  the  federal  government 
are  ever  found  necessary  they  should  be  in  the 
direction,  first,  of  uniting  the  executive  power 
and  the  legislative  power,  and  second,  the 
eHmination  of  the  Senate  veto  upon  executive 
appointments.     The   former   may   be   accom- 

pHshed  by  placing  the  control  of  the  executive 

260 


Changes  in  Plan  of  Federal  Government 

power  in  the  hands  of  the  president  and  his 
cabinet  or  in  a  so-called  council  of  state  com- 
posed of  the  president  and  his  cabinet  officers 
and  also  requiring  that  each  cabinet  officer 
must  be  a  member  of  one  of  the  houses 
of  Congress.  This  would  at  once  place  the 
control  of  the  executive  power  of  the  nation 
in  the  hands  of  the  leaders  of  the  majority  in 
both  branches  of  the  legislature,  or  at  least 
in  the  leaders  of  that  branch  which  more 
effectively  represented  the  electorate.  The 
president  would  cease  to  carry  his  present  load 
of  responsibility  for  executive  action  and  legis- 
lative progress.  His  office  would  be  impor- 
tant, for  he  would  be  that  human  agency 
necessary  to  place  the  representatives  of  the 
victors  at  the  polls  in  control  of  the  execu- 
tive power.  His  influence  as  a  member  of  the 
council  of  state  would  be  considerable.  With 
a  veto  power  over  legislation  he  would  stiU 
retain  an  enormous  one-man  power. 


261 


CHAPTER  XIX 
CONCLUSION 

The  conflict  between  extra-legal  government 
and  the  popular  demand  for  a  true  democracy 
is  as  irresistible  as  was  the  conflict  between 
the  South  and  the  North  over  the  institution 
of  slavery.  Extra-legal  government,  like  the 
South,  represents  a  vast  property  interest 
which,  while  at  first  seeking  protection,  soon 
became  aggressive  in  its  desire  to  extend  its 
power  and  its  institutions.  As  the  North 
sought  to  live  with  the  institution  of  slavery 
in  the  South,  to  compromise  with  it  and  to 
check  it  here  and  there,  so  we  have  been  try- 
ing to  hve  with  extra-legal  government,  to 
compromise  with  it  and  to  check  it  when  we 
saw  it  in  an  especiaUy  obnoxious  form.  But 
as  the  fight  for  and  against  slavery  was  never 
settled  till  slavery  was  abolished,  so  the  war 
on  politocracy  will  never  cease  till  some  great 
national  crisis  has  given  birth  to  a  new  poHti- 

cal  philosophy  and  a  sound  practice  under  it, 

262 


Conclusion 


which  will  sweep  extra-legal  government  from 
the  field.  That  philosophy  is  summed  up  in 
three  prosaic  words:  The  Short  Ballot.  They 
are  the  emancipation  proclamation  for  our 
government.  The  faithful  and  complete  appli- 
cation of  the  principles  underlying  the  short 
baUot  in  our  local  and  state  governments  wiU 
be  as  important  and  perhaps  as  difficult  a  step 
for  us  to  achieve  as  was  the  emancipation  of 
the  slaves. 


263 


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